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REVOLVING CREDIT AGREEMENT
DATED as of August 21, 1998
among
FREEDOM SECURITIES CORPORATION,
BANKBOSTON, N.A., AND THE OTHER LENDING
INSTITUTIONS LISTED ON SCHEDULE 1 ATTACHED HERETO,
BANKBOSTON, N.A., AS ADMINISTRATIVE AND DOCUMENTATION AGENT,
and
THE BANK OF NEW YORK, AS SYNDICATION AGENT
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION..................................... 1
1.1. Definitions. .................................................... 1
1.2. Rules of Interpretation. ........................................ 16
2. THE REVOLVING CREDIT FACILITY. ............................................ 18
2.1. Commitment to Lend. ............................................. 18
2.2. Commitment Fee. ................................................. 18
2.3. Reduction of Total Commitment. .................................. 18
2.3.1. Mandatory Reduction. ................................... 18
2.3.2. Optional Reduction. .................................... 19
2.4. The Revolving Credit Notes. ..................................... 19
2.5. Interest on Revolving Credit Loans. ............................. 19
2.6. Requests for Revolving Credit Loans. ............................ 20
2.7. Conversion Options. ............................................. 20
2.7.1. Conversion to Different Type of Revolving Credit
Loan. .................................................. 20
2.7.2. Continuation of Type of Revolving Credit Loan. ......... 21
2.7.3. Eurodollar Rate Loans. ................................. 21
2.8. Funds for Revolving Credit Loans. ............................... 21
2.8.1. Funding Procedures. .................................... 21
2.8.2. Advances by Agent. ..................................... 22
3. REPAYMENT OF THE REVOLVING CREDIT LOANS. .................................. 22
3.1. Maturity. ....................................................... 22
3.2. Mandatory Repayments of Revolving Credit Loans. ................. 23
3.3. Optional Repayments of Revolving Credit Loans. .................. 23
4. CERTAIN GENERAL PROVISIONS. ............................................... 23
4.1. Syndication Fee................................................... 23
4.2. Agent's Fee. .................................................... 23
4.3. Funds for Payments. ............................................. 23
4.3.1. Payments to Agent. ..................................... 23
4.3.2. No Offset, etc. ........................................ 24
4.4. Computations. ................................................... 24
4.5. Inability to Determine Eurodollar Rate. ......................... 24
4.6. Illegality. ..................................................... 25
4.7. Additional Costs, etc. .......................................... 25
4.8. Capital Adequacy. ............................................... 26
4.9. Certificate. .................................................... 27
4.10. Indemnity. ..................................................... 27
4.11. Interest After Default. ........................................ 28
4.11.1. Overdue Amounts. ...................................... 28
4.11.2. Amounts Not Overdue. .................................. 28
5. GUARANTIES. ............................................................... 28
6. REPRESENTATIONS AND WARRANTIES. ........................................... 28
6.1. Corporate Authority. ............................................ 28
6.1.1. Incorporation; Good Standing. .......................... 28
6.1.2. Authorization. ......................................... 28
6.1.3. Enforceability. ........................................ 29
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6.2. Capitalization; Subsidiaries, Etc. .............................. 29
6.2.1. Capitalization. ........................................ 29
6.2.2. Subsidiaries. .......................................... 29
6.3. Governmental Approvals. ......................................... 29
6.4. Title to Properties; Leases. .................................... 30
6.5. Financial Statements. ........................................... 30
6.5.1. Fiscal Year. ........................................... 30
6.5.2. Financial Statements. .................................. 30
6.5.3. Solvency. .............................................. 30
6.6. No Material Changes, etc. ....................................... 30
6.7. Franchises, Patents, Copyrights, etc. ........................... 31
6.8. Litigation. ..................................................... 31
6.9. No Materially Adverse Contracts, etc. ........................... 31
6.10. Compliance with Other Instruments, Laws, etc. .................. 31
6.11. Tax Status. .................................................... 32
6.12. No Event of Default. ........................................... 32
6.13. Absence of Financing Statements, etc. .......................... 32
6.14. Certain Transactions. .......................................... 32
6.15. Employee Benefit Plans. ........................................ 32
6.15.1. In General. ........................................... 32
6.15.2. Terminability of Welfare Plans. ....................... 33
6.15.3. Guaranteed Pension Plans. ............................. 33
6.15.4. Multiemployer Plans. .................................. 33
6.16. Use of Proceeds. ............................................... 34
6.16.1. General. .............................................. 34
6.16.2. Regulations U and X. .................................. 34
6.16.3. Ineligible Securities. ................................ 34
6.17. Environmental Compliance. ...................................... 34
6.18. Broker-Dealer Subsidiaries ..................................... 36
6.19. Advisory Subsidiaries .......................................... 36
6.20. Investment Fund Clients ........................................ 37
6.21. Holding Company and Investment Company Acts .................... 37
6.22. Disclosure. .................................................... 38
6.23. Capitalization Documents. ...................................... 38
6.24. Chief Executive Office. ........................................ 38
7. AFFIRMATIVE COVENANTS OF THE BORROWER. .................................... 38
7.1. Punctual Payment. ............................................... 38
7.2. Maintenance of Office. .......................................... 38
7.3. Records and Accounts. ........................................... 38
7.4. Financial Statements, Certificates and Information. ............. 39
7.5. Notices. ........................................................ 40
7.5.1. Defaults. .............................................. 40
7.5.2. Environmental Events. .................................. 40
7.5.3. Notice of Litigation and Judgments. .................... 41
7.6. Corporate Existence; Maintenance of Properties. ................. 41
7.7. Insurance. ...................................................... 41
7.8. Taxes. .......................................................... 42
7.9. Inspection of Properties and Books, etc. ........................ 42
7.9.1. General. ............................................... 42
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7.9.2. Communications with Accountants. ....................... 42
7.10. Compliance with Laws, Contracts, Licenses, and Permits. ........ 43
7.11. Employee Benefit Plans. ........................................ 44
7.12. Use of Proceeds. ............................................... 44
7.13. Additional Subsidiaries. ....................................... 44
7.14. Guarantors. .................................................... 44
7.14.1. Subsidiaries Other Than Broker-Dealer Subsidiaries. ... 44
7.14.2. Broker-Dealer Subsidiaries. ........................... 44
7.15. Year 2000 Problem. ............................................. 45
7.16. Further Assurances. ............................................ 45
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. ............................... 45
8.1. Restrictions on Indebtedness. ................................... 45
8.2. Restrictions on Liens. .......................................... 45
8.3. Restrictions on Investments. .................................... 47
8.4. Restricted Payments. ............................................ 48
8.5. Merger, Consolidation and Disposition of Assets. ................ 48
8.5.1. Mergers and Acquisitions. .............................. 48
8.5.2. Disposition of Assets. ................................. 48
8.6. Sale and Leaseback. ............................................. 49
8.7. Compliance with Environmental Laws. ............................. 49
8.8. Employee Benefit Plans. ......................................... 49
8.9. Business Activities. ............................................ 50
8.10. Change in Terms of Equity Securities; Issuance of Equity
Securities by Subsidiaries. .................................... 50
8.11. Fiscal Year. ................................................... 50
8.12. Transactions with Affiliates. .................................. 50
8.13. Inconsistent Agreements. ....................................... 50
9. FINANCIAL COVENANTS OF THE BORROWER. ...................................... 51
9.1. Funded Debt to Consolidated Net Worth. .......................... 51
9.2. Net Worth. ...................................................... 51
10. CLOSING CONDITIONS. ...................................................... 51
10.1. Loan Documents. ................................................ 51
10.2. Certified Copies of Charter Documents. ......................... 51
10.3. Corporate Action. .............................................. 51
10.4. Incumbency Certificate. ........................................ 51
10.5. UCC Search Results. ............................................ 52
10.6. Certificates of Insurance. ..................................... 52
10.7. Solvency Certificate. .......................................... 52
10.8. Opinions of Counsel. ........................................... 52
10.9. Payment of Fees. ............................................... 52
10.10. Financial Statements and Focus Reports. ....................... 52
10.11. Federal Reserve Forms U-1. .................................... 52
10.12. Representations and Warranties. ............................... 52
10.13. Proceedings and Documents. .................................... 52
10.14. UCC Terminations. ............................................. 53
11. CONDITIONS TO ALL BORROWINGS. ............................................ 53
11.1. Representations True; No Event of Default. ..................... 53
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11.2. No Legal Impediment. ........................................... 53
11.3. Governmental Regulation. ....................................... 53
11.4. Proceedings and Documents. ..................................... 53
12. EVENTS OF DEFAULT; ACCELERATION; ETC. .................................... 54
12.1. Events of Default and Acceleration. ............................ 54
12.2. Termination of Commitments. .................................... 57
12.3. Remedies. ...................................................... 57
13. SETOFF. .................................................................. 58
14. THE AGENT. ............................................................... 58
14.1. Authorization. ................................................. 58
14.2. Employees and Agents. .......................................... 59
14.3. No Liability. .................................................. 59
14.4. No Representations. ............................................ 59
14.4.1. General. .............................................. 59
14.4.2. Closing Documentation, etc. ........................... 60
14.5. Payments. ...................................................... 60
14.5.1. Payments to Agent. .................................... 60
14.5.2. Distribution by Agent. ................................ 60
14.5.3. Delinquent Banks. ..................................... 61
14.6. Holders of Notes. .............................................. 61
14.7. Indemnity. ..................................................... 61
14.8. Agent as Bank. ................................................. 62
14.9. Resignation. ................................................... 62
14.10. Notification of Defaults and Events of Default. ............... 62
15. EXPENSES ................................................................. 62
16. INDEMNIFICATION .......................................................... 63
17. SURVIVAL OF COVENANTS, ETC. .............................................. 63
18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION. ........................... 64
18.1. Sharing of Information with Section 20 Subsidiary. ............. 64
18.2. Confidentiality. ............................................... 64
18.3. Prior Notification. ............................................ 65
18.4. Other. ......................................................... 65
19. ASSIGNMENT AND PARTICIPATION. ............................................ 65
19.1. Conditions to Assignment by Banks. ............................. 65
19.2. Certain Representations and Warranties; Limitations; Covenants... 66
19.3. Register. ...................................................... 67
19.4. New Notes. ..................................................... 67
19.5. Participations. ................................................ 68
19.6. Disclosure. .................................................... 68
19.7. Assignee or Participant Affiliated with the Borrower. .......... 68
19.8. Miscellaneous Assignment Provisions. ........................... 69
19.9. Assignment by Borrower. ........................................ 69
20. NOTICES, ETC. ............................................................ 69
21. GOVERNING LAW. ........................................................... 70
22. HEADINGS. ................................................................ 70
23. COUNTERPARTS. ............................................................ 70
24. ENTIRE AGREEMENT, ETC. ................................................... 71
25. WAIVER OF JURY TRIAL. .................................................... 71
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26. CONSENTS, AMENDMENTS, WAIVERS, ETC. ...................................... 71
27. SEVERABILITY. ............................................................ 72
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of August 21, 1998, by and
among FREEDOM SECURITIES CORPORATION (formerly known as JHFSC Acquisition Corp.)
(the "Borrower"), a Delaware corporation, and BANKBOSTON, N.A. and the other
lending institutions listed on SCHEDULE 1, BANKBOSTON, N.A., as administrative
and documentation agent for itself and such other lending institutions, and THE
BANK OF NEW YORK as syndication agent for itself and such other lending
institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth
in this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
ACTIVE SUBSIDIARIES. The Advisory Subsidiaries, the Broker-Dealer
Subsidiaries and all other Subsidiaries of the Borrower that are not Inactive
Subsidiaries.
ADJUSTMENT DATE. The first day of the month immediately following the
month in which a Compliance Certificate is to be delivered by the Borrower
pursuant to ss.7.4(c) hereof.
ADVISERS ACT. The Investment Advisers Act of 1940 (or any successor
statute) and the rules and regulations thereunder, all as from time to time in
effect.
ADVISORY AGREEMENTS. The binding written contractual agreements under
which the Borrower or any of its Subsidiaries provides investment advisory
services.
ADVISORY SUBSIDIARIES. Those Subsidiaries of the Borrower that provide
investment advisory services.
AFFILIATE. Any Person that would be considered to be an affiliate of the
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
AGENT'S FEE LETTER. The fee letter dated on or prior to the Closing Date
between the Borrower and the Agent, as the same may be amended, modified or
supplemented from time to time.
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AGENT'S HEAD OFFICE. The Agent's head office located at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location as the Agent may
designate from time to time.
AGENT. BankBoston, N.A. (formerly known as The First National Bank of
Boston) acting as administrative and documentation agent for the Banks.
AGENT'S SPECIAL COUNSEL. Xxxxxxx Xxxx LLP or such other counsel as may
be approved by the Agent.
APPLICABLE MARGIN. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Borrower's Leverage Ratio, as determined for the
period ending on the fiscal quarter ended immediately preceding the applicable
Rate Adjustment Period.
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APPLICABLE APPLICABLE APPLICABLE
MARGIN FOR BASE MARGIN FOR MARGIN FOR
RATE LOANS EURODOLLAR FEDERAL FUNDS COMMITMENT
TIER LEVERAGE LOANS RATE LOANS RATE FEE RATE
RATIO
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Greater
1 than or 0.00% 0.75% 0.75% 0.15%
equal to
0.25:1.00
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Less than
2 0.25:1.00 0.00% 0.625% 0.625% 0.15%
but
greater
than or
equal to
0.15:1.00
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3 Less than 0.00% 0.50% 0.50% 0.15%
0.15:1.00
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Notwithstanding the foregoing, (a) for Revolving Credit Loans
outstanding and the Commitment Fee Rate during the period commencing on the
Closing Date through the date immediately preceding the first Adjustment Date to
occur after the fiscal quarter ending September 30, 1998, the Applicable Margin
shall be set at Tier 3, and (b) if the Borrower fails to deliver any Compliance
Certificate pursuant to ss.7.4(c) hereof then, for the period commencing on the
next Adjustment Date to occur subsequent to such failure through the date
immediately following the date on which such Compliance Certificate is
delivered, the Applicable Margin shall be the highest Applicable Margin set
forth above.
ASSET SALE. Any one or series of related transactions in which any
applicable Person conveys, sells, transfers or otherwise disposes of, directly
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or indirectly, any of its properties, business or assets (including the sale or
issuance of capital stock of a Subsidiary), whether owned on the Closing Date or
thereafter acquired.
ASSET SALE TRIGGER. Any Asset Sale that constitutes five percent (5%) or
more of the Consolidated Total Assets of the Borrower and its Subsidiaries on
the first day of such fiscal year, other than sales by any Broker-Dealer
Subsidiary of Investments permitted by ss.8.3(g) hereof.
ASSIGNMENT AND ACCEPTANCE. See ss.19.1 hereof.
BALANCE SHEET DATE. December 31, 1997.
BANKS. BKB and the other lending institutions listed on SCHEDULE 1
hereto and any other Person who becomes an assignee of any rights and
obligations of a Bank pursuant to ss.19 hereof.
BASE RATE. The higher of (a) the annual rate of interest announced from
time to time by BKB at its head office in Boston, Massachusetts, as its "base
rate" and (b) one-half of one percent (1/2%) above the Federal Funds Effective
Rate. For the purposes of this definition, "Federal Funds Effective Rate" shall
mean for any day, the rate per annum equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three funds brokers of recognized
standing selected by the Agent.
BASE RATE LOANS. Revolving Credit Loans bearing interest calculated by
reference to the Base Rate.
BKB. BankBoston, N.A. (formerly known as The First National Bank of
Boston), a national banking association, in its individual capacity.
BORROWER. As defined in the preamble hereto.
BROKER-DEALER AGREEMENTS. See ss.6.18 hereof.
BROKER-DEALER SUBSIDIARIES. Those Subsidiaries of the Borrower that (a)
provide broker/dealer services, (b) act as a broker or dealer or (c) are
required to comply with net capital requirements under the Exchange Act.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts and New York, New York, are open for the transaction of banking
business and, in the case of Eurodollar Rate Loans, also a day which is a
Eurodollar Business Day.
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CAPITAL ASSETS. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); PROVIDED that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
CAPITALIZATION DOCUMENTS. Collectively, the Stockholders Agreement
(including the agreement, instruments and documents that are exhibits thereto)
and the articles of incorporation and by-laws of the Borrower and its Active
Subsidiaries.
CAPITALIZED LEASES. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with generally accepted accounting
principles.
CERCLA. See ss.6.17(a) hereof.
CLOSING DATE. The first date on which the conditions set forth in ss.10
hereof have been satisfied and any Revolving Credit Loans are to be made.
CODE. The Internal Revenue Code of 1986.
COMMITMENT. The agreement of each Bank, subject to the terms and
conditions of this Credit Agreement, to make Revolving Credit Loans to the
Borrower.
COMMITMENT AMOUNT. With respect to each Bank, the amount set forth on
SCHEDULE 1 attached hereto as the amount of such Bank's Commitment as the same
may be reduced from time to time in accordance with the terms hereof; or if such
Commitment is terminated pursuant to the provisions hereof, zero.
COMMITMENT FEE RATE. As referred to as such in the table contained in
the definition of "Applicable Margin".
COMMITMENT PERCENTAGE. With respect to each Bank, the percentage set
forth on SCHEDULE 1 hereto as such Bank's percentage of the Total Commitment.
COMMODITIES ACT. The Commodities Exchange Act (or any successor
statute), the rules and regulations thereunder, the rules and regulations of the
Commodities Futures Trading Commission (or any successor), all as from time to
time in effect.
COMPLIANCE CERTIFICATE. See ss.7.4(c) hereof.
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CONSOLIDATED OR CONSOLIDATED. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
CONSOLIDATED NET WORTH. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, LESS, to the extent otherwise includable in the
computations of Consolidated Net Worth, any subscriptions receivable.
CONSOLIDATED REVENUE. For any period, the total revenues of the Borrower
and its Subsidiaries determined in accordance with generally accepted accounting
principles.
CONSOLIDATED TOTAL ASSETS. The sum of (a) all assets ("consolidated
balance sheet assets") of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted accounting principles,
PLUS (b) without duplication, all assets leased by the Borrower or any
Subsidiary as lessee under any Synthetic Lease to the extent that such assets
would have been consolidated balance sheet assets had the synthetic lease been
treated for accounting purposes as a Capitalized Lease, PLUS (c) without
duplication, all sold receivables referred to in clause (g) of the definition of
the term "Indebtedness" to the extent that such receivables would have been
consolidated balance sheet assets had they not been sold.
CONSOLIDATED TOTAL LIABILITIES. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and classified as such on the consolidated
balance sheet of the Borrower and its Subsidiaries and all other Indebtedness of
the Borrower and its Subsidiaries, whether or not so classified.
CONVERSION REQUEST. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Loan in accordance with ss.2.7
hereof.
CREDIT AGREEMENT. This Revolving Credit Agreement, including the
Schedules and Exhibits hereto.
DEFAULT. See ss.12.1 hereof.
DELINQUENT BANK. See ss.14.5.3 hereof.
DERIVATIVES. See paragraph (i) of the definition of Indebtedness
hereunder.
DISTRIBUTION. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, or other retirement of any shares of any class of
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capital stock of the Borrower, directly or indirectly through a Subsidiary of
the Borrower or otherwise; the return of capital by the Borrower to its
shareholders as such; or any other distribution on or in respect of any shares
of any class of capital stock of the Borrower.
DOLLARS or $. Dollars in lawful currency of the United States of
America.
DOMESTIC LENDING OFFICE. Initially, the office of each Bank designated
as such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans and Federal Funds Rate Loans.
DRAWDOWN DATE. The date on which any Revolving Credit Loan is made or is
to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with ss.2.7 hereof.
ELIGIBLE ASSIGNEE. Any of (a) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, PROVIDED that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) if, but only if, any
Event of Default has occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial institution or other
Person approved by the Agent, such approval not to be unreasonably withheld.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained of contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
EMPLOYEE GROUP. Collectively, as at any date of determination, the
employees of the Borrower and its Subsidiaries.
ENVIRONMENTAL LAWS. See ss.6.17(a) hereof.
EPA. See ss.6.17(b) hereof.
EQUITY ISSUANCE. The sale or issuance by the Borrower or any of its
Subsidiaries of any of its Equity Securities.
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EQUITY SECURITIES. With respect to any corporation, partnership, trust,
unincorporated association, joint venture, limited liability company, or other
legal or business entity, all equity securities of such entity, including any
(a) common or preferred stock, (b) limited or general partnership interests, (c)
options, warrants, or other legal rights to purchase or acquire any capital
stock or equity interests, or (d) securities convertible into any equity
securities.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with
the Borrower under ss.414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Bank designated
as such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if
any, that shall be making or maintaining Eurodollar Rate Loans.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the arithmetic average of the rates
per annum for each Reference Bank (rounded upwards to the nearest 1/16 of one
percent) of the rate at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two (2) Eurodollar Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations of such Eurodollar Lending Office
are customarily conducted, for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to the
amount of the Eurodollar Rate Loan of such Reference Bank to which such Interest
Period applies, divided by (b) a number equal to 1.00 minus the Eurocurrency
Reserve Rate, if applicable.
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EURODOLLAR RATE LOANS. Revolving Credit Loans bearing interest
calculated by reference to the Eurodollar Rate.
EVENT OF DEFAULT. See ss.12.1 hereof.
EXCHANGE ACT. The Securities Exchange Act of 1934 (or any successor
statute) and the rules and regulations thereunder, all as from time to time in
effect.
FEDERAL FUNDS RATE. As of any date of determination with respect to a
Federal Funds Rate Loan, for such date an interest rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by the
Agent in its sole discretion.
FEDERAL FUNDS RATE LOANS. Revolving Credit Loans bearing interest
calculated by reference to the Federal Funds Rate.
FOCUS REPORT. The Financial and Operational Combined Uniform Single
Report, in the form of EXHIBIT E attached hereto, used by a Broker-Dealer
Subsidiary to evidence compliance with applicable net capital requirements under
the Exchange Act, as such report and the defined terms used therein are in
effect on the date hereof.
FUND. With respect to any Trust that has more than one portfolio, the
individual portfolio for which the Borrower or any of its Subsidiaries provides
investment advisory services pursuant to an Advisory Contract.
FUND AGREEMENTS. As defined in ss.6.20 hereof.
FUNDED DEBT. All Indebtedness of the Borrower and its Subsidiaries for
borrowed money (including without limitation, and without duplication, all
guarantees by such Person of Indebtedness of others for borrowed money),
purchase money Indebtedness, and with respect to Capitalized Leases and
Synthetic Leases and Derivatives determined on a consolidated basis and in
accordance with generally accepted accounting principles; PROVIDED, HOWEVER,
that Funded Debt shall not include (a) Indebtedness of the Subsidiaries in
respect of securities repurchase agreements and (b) Indebtedness otherwise
included pertaining to the fixed asset financing arrangement between certain
Subsidiaries of the Borrower and BancBoston Leasing Inc. pursuant to those
certain Chattel Leasing Promissory Notes dated as of February 28, 1997 and in
the aggregate original principal amount of $25,818,941.00, or any refinancing or
extension thereof, so long as any refinancing does not increase the principal
amount thereof.
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GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (a) When used in ss.9 hereof,
whether directly or indirectly through reference to a capitalized term used
therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(ii) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (b) when used in general, other than as provided above,
means principles that are (i) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (ii) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTOR. Each Subsidiary of the Borrower other than the Broker-Dealer
Subsidiaries existing on the Closing Date and each other Subsidiary of the
Borrower which is required to be or become a guarantor from time to time
pursuant to ss.7.14 hereof.
GUARANTY. The Guaranty, dated as of the date hereof, made by certain of
the Subsidiaries of the Borrower in favor of the Banks and Agent pursuant to
which such Subsidiaries guaranty to the Banks and the Agent the payment and
performance of the Obligations, substantially in the form of EXHIBIT F attached
hereto.
HAZARDOUS SUBSTANCES. See ss.6.17(b) hereof.
INACTIVE SUBSIDIARIES. Those Subsidiaries of the Borrower that carry on
insignificant business activities and whose revenue for the most recently ended
fiscal year of the Borrower, on a combined basis, constituted no more than 3% of
the Consolidated Revenue of the Borrower and its Subsidiaries for such fiscal
year.
INDEBTEDNESS. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
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(b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances, payment and performance bonds,
surety bonds, or similar facilities issued for the account of such
Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith),
(e) every obligation of such Person under any Capitalized Lease,
(f) every obligation of such Person under any lease (a "Synthetic
Lease") treated as an operating lease under generally accepted
accounting principles and as a loan or financing for U.S. income tax
purposes,
(g) all sales by such Person of (i) accounts or general
intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively "receivables"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating
thereto or a disposition of defaulted receivables for collection and not
as a financing arrangement, and together with any obligation of such
Person to pay any discount, interest, fees, indemnities, penalties,
recourse, expenses or other amounts in connection therewith,
(h) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value
any shares of capital stock of any class issued by such Person, any
warrants, options or other rights to acquire any such shares, or any
rights measured by the value of such shares, warrants, options or other
rights,
(i) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing or derivative
agreement or arrangement (including, without limitation, caps, floors,
collars and similar agreements), the value of which is dependent upon
interest rates, currency exchange rates, commodities or other indices or
measures (collectively, "Derivatives"),
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(j) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor and such terms are enforceable
under applicable law,
(k) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of
clauses (a) through (j) (the "primary obligation") of another Person
(the "primary obligor"), in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase of) any
security for the payment of such primary obligation, (ii) to purchase
property, securities or services for the purpose of assuring the payment
of such primary obligation, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such primary
obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (v) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with generally accepted
accounting principles, (w) any Capitalized Lease shall be the principal
component of the aggregate of the rentals obligation under such Capitalized
Lease payable over the term thereof that is not subject to termination by the
lessee, (x) any sale of receivables shall be the amount of unrecovered capital
or principal investment of the purchaser (other than the Borrower or any of its
wholly-owned Subsidiaries) thereof, excluding amounts representative of yield or
interest earned on such investment, (y) any Synthetic Lease shall be the
stipulated loss value, termination value or other equivalent amount and (z) any
equity related purchase obligation shall be the maximum fixed redemption or
purchase price thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price.
INELIGIBLE SECURITIES. Securities which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1993 (12 U.S.C. ss.24, Seventh), as amended.
INTEREST PAYMENT DATE. (a) as to any Base Rate Loan or Federal Funds
Rate Loan, the last day of the calendar quarter with respect to interest accrued
during such calendar quarter, including, without limitation, the calendar
quarter which includes the Drawdown Date of such Base Rate Loan or Federal Funds
Rate Loan, as the case may be, and (b) as to any Eurodollar Rate Loan in respect
of which the Interest Period is (i)
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three (3) months or less, the last day of such Interest Period, and (ii) more
than three (3) months, the date that is three (3) months from the first day of
such Interest Period and, in addition, the last day of such Interest Period.
INTEREST PERIOD. With respect to each Revolving Credit Loan, (a)
initially, the period commencing on the Drawdown Date of such Revolving Credit
Loan and ending on the last day of one of the periods set forth below, as
selected by the Borrower in a Loan Request or as otherwise required by the terms
of this Credit Agreement: (i) for any Base Rate Loan, the last day of the
calendar quarter; (ii) for any Eurodollar Rate Loan, 1, 2, 3, or 6 months; and
(iii) for any Federal Funds Rate Loan, the last day of the calendar quarter, and
(b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Revolving Credit Loan and ending on the last
day of one of the periods set forth above, as selected by the Borrower in a
Conversion Request; PROVIDED that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Eurodollar
Business Day;
(b) if any Interest Period with respect to a Base Rate Loan or
Federal Funds Rate Loan would end on a day that is not a Business Day,
that Interest Period shall end on the next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in
ss.2.7 hereof, the Borrower shall be deemed to have requested a
conversion of the affected Eurodollar Rate Loan or Federal Funds Rate
Loan to a Base Rate Loan and the continuance of all Base Rate Loans as
Base Rate Loans on the last day of the then current Interest Period with
respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Eurodollar Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond the
Revolving Credit Loan Maturity Date shall end on the Revolving Credit
Loan Maturity Date.
INVESTMENT COMPANY ACT. The Investment Company Act of 1940 (or any
successor statute) and the rules and regulations thereunder, all as from time to
time in effect.
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INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
INVESTORS. Collectively, Xxx, SCP and the Employee Group.
XXX. Collectively, Xxxxxx X. Xxx Equity Fund III, L.P., a Delaware
limited partnership, Xxxxxx X. Xxx Foreign Fund III, L.P., a Delaware limited
partnership, THL-CCI Limited Partnership and their respective Affiliates.
LEVERAGE RATIO. As at any date of determination, the ratio of (a) Funded
Debt of the Borrower and its Subsidiaries outstanding on such date to (b) the
Consolidated Net Worth of the Borrower and its Subsidiaries on such date.
LOAN DOCUMENTS. Collectively, this Credit Agreement, the Notes, the
Agent's Fee Letter, the Syndication Fee Letter, the Guaranty, and any and all
other documents and instruments required to be delivered pursuant to this Credit
Agreement, in each case as amended and in effect from time to time.
LOAN REQUEST. See ss.2.6 hereof.
MAJORITY BANKS. As of any date, the Banks holding at least fifty-one
percent (51%) of the outstanding principal amount of the Notes on such date; and
if no such principal is outstanding, the Banks whose aggregate Commitments
constitute at least fifty-one percent (51%) of the Total Commitment.
MATERIAL ADVERSE EFFECT. Any material adverse effect on (a) the
business, properties, condition (financial or otherwise) and operations of the
Borrower and its Subsidiaries on a consolidated basis; or (b) the legality,
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validity, binding effect or enforceability of this Credit Agreement or any of
the other Loan Documents.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
NASD. The National Association of Securities Dealers, Inc. (or any
successor self-regulatory organization).
NET CASH PROCEEDS. With respect to any Equity Issuance, the excess of
the gross cash proceeds received by such Person from such Equity Issuance after
deduction of reasonable and customary transaction expenses (including without
limitation underwriting discounts and commissions) actually incurred with the
Equity Issuance.
NET CASH SALE PROCEEDS. The gross cash proceeds received by the Borrower
and any of its Subsidiaries in respect of any Asset Sale Trigger, less the sum
of (a) all reasonable out-of-pocket fees, commissions and other expenses
incurred in connection with such Asset Sale Trigger, including the amount
(estimated in good faith by such Person) of income, franchise, sales and other
applicable taxes required to be paid by such Person in connection with such
Asset Sale Trigger and (b) the aggregate amount of cash so received by such
Person which is used to retire (in whole or in part) any Indebtedness (other
than under the Loan Documents) of such Person permitted by this Credit Agreement
that was secured by a lien or security interest (if any) permitted by this
Credit Agreement having priority over the liens and security interests (if any)
of the Agent, for the benefit of the Banks, with respect to such assets
transferred, and which is required to be repaid in whole or in part (which
repayment, in the case of any other revolving credit arrangements or multiple
advance arrangements, reduces the commitments thereunder) in connection with
such Asset Sale Trigger.
NET PROCEEDS. Collectively, Net Cash Proceeds and Net Cash Sale
Proceeds.
NOTES. See ss.2.4 hereof.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or in respect of any of the
Revolving Credit Loans made or any of the Notes or other instruments at any time
evidencing any thereof.
ORIGINAL CREDIT AGREEMENT. That certain Revolving Credit Agreement dated
as of November 29, 1996 by and among the Borrower, the lending
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institutions party thereto, the Agent and The Bank of New York as co-agent, as
the same has been amended to date.
OUTSTANDING. With respect to the Revolving Credit Loans, the aggregate
unpaid principal thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED LIENS. Liens, security interests and other encumbrances
permitted by ss.8.2 hereof.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
RATE ADJUSTMENT PERIOD. See the definition of Applicable Margin.
RCRA. See ss.6.17(a).
REAL ESTATE. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
RECORD. The grid attached to a Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any Bank
with respect to any Revolving Credit Loan referred to in such Note.
REFERENCE BANK. BKB.
REGISTER. See ss.19.3 hereof.
RESTRICTED PAYMENT. In relation to the Borrower and its Subsidiaries,
any (a) Distribution or (b) payment or prepayment by the Borrower or its
Subsidiaries to any Investor or to any Affiliate of the Borrower, any Subsidiary
or any Investor; PROVIDED, HOWEVER, Restricted Payments shall not include any
payments among the Borrower and its Subsidiaries.
REVOLVING CREDIT LOAN MATURITY DATE. August 21, 2001.
REVOLVING CREDIT LOANS. Revolving credit loans made or to be made by the
Banks to the Borrower pursuant to ss.2 hereof.
XXXX. See ss.6.17(a) hereof.
SCP. SCP Private Equity Partners, L.P., a Delaware limited partnership.
SECTION 20 SUBSIDIARY. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the
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Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
SECURITIES ACT. The Securities Act of 1933 (or any successor statute)
and the rules and regulations thereunder, all as from time to time in effect.
STOCKHOLDERS AGREEMENT. That certain Stockholders Agreement, dated as of
November 29, 1996, by and among the Borrower, Xxx, SCP, the Employee Group, and
Xxxx Xxxxxxx Subsidiaries, Inc..
SUBSIDIARY. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
SYNDICATION AGENT. The Bank of New York acting as syndication agent for
the Banks.
SYNDICATION FEE LETTER. The fee letter dated on or prior to the Closing
Date between the Borrower and the Syndication Agent, as the same may be amended,
modified or supplemented from time to time.
SYNTHETIC LEASE. As defined in paragraph (f) of the definition of
"Indebtedness" hereunder.
TOTAL COMMITMENT. The sum of the Commitment Amounts, as in effect from
time to time.
TRUST. Each registered investment company under the Investment Company
Act for which any of the Advisory Subsidiaries provides investment advisory
services pursuant to an Advisory Agreement.
TYPE. As to any Revolving Credit Loan, its nature as a Base Rate Loan, a
Eurodollar Rate Loan or a Federal Funds Rate Loan.
VOTING STOCK. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit
Agreement.
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(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification
to such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein, with the term "instrument" being
that defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the
word "from" means "from and including," the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and
including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in accordance with the
terms thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among
others, the Agent and the Borrower and are the product of discussions
and negotiations among all parties. Accordingly, this Credit Agreement
and the other Loan Documents are not intended to be construed against
the Agent or any of the Banks merely on
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account of the Agent's or any Bank's involvement in the preparation of
such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time from
the Closing Date up to but not including the Revolving Credit Loan Maturity Date
upon notice by the Borrower to the Agent given in accordance with ss.2.6, such
sums as are requested by the Borrower up to a maximum aggregate amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Bank's Commitment, PROVIDED that the sum of the outstanding amount of
the Revolving Credit Loans (after giving effect to all amounts requested) shall
not at any time exceed the Total Commitment. The Revolving Credit Loans shall be
made PRO RATA in accordance with each Bank's Commitment Percentage. Each request
for a Revolving Credit Loan hereunder shall constitute a representation and
warranty by the Borrower that the conditions set forth in ss.10 and ss.11, in
the case of the initial Revolving Credit Loans to be made on the Closing Date,
and ss.11, in the case of all other Revolving Credit Loans, have been satisfied
on the date of such request.
2.2. COMMITMENT FEE. The Borrower agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a commitment fee calculated at a rate per annum equal to the Commitment Fee Rate
on the average daily amount during each calendar quarter or portion thereof from
the date hereof to the Revolving Credit Loan Maturity Date by which the Total
Commitment exceeds the outstanding amount of Revolving Credit Loans during such
calendar quarter. The commitment fee shall be payable quarterly in arrears on
the first day of each calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the date hereof, with a
final payment on the Revolving Credit Maturity Date or any earlier date on which
the Commitments shall terminate.
2.3. REDUCTION OF TOTAL COMMITMENT.
2.3.1. MANDATORY REDUCTION.
(a) If, at any time after the Closing Date, the Borrower or any
of its Subsidiaries receives any Net Cash Sale Proceeds from the sale or
disposition of Freedom Capital Management Corporation, Sutro & Co.
Incorporated, Xxxxxx Xxxxxxx Incorporated, or Xxxxxx Gull Xxxxxxx &
XxXxxxxx Inc., the Total Commitment shall automatically and irrevocably
be reduced 180 days after receipt of such Net Cash Sale Proceeds by the
Borrower or such Subsidiary by an amount equal to 100% of such Net Cash
Sale Proceeds which are not used by the Borrower or such Subsidiary
prior to such date to replace the assets sold in such Asset Sale.
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(b) On the date of each mandatory reduction in the Total
Commitment pursuant to this ss.2.3.1, each Bank's Commitment shall be
reduced PRO RATA in accordance with its respective Commitment Percentage
of the amount so reduced.
2.3.2. OPTIONAL REDUCTION. The Borrower shall have the right, at
any time and from time to time upon three (3) Business Days written
notice to the Agent, to reduce by $1,000,000 or an integral multiple
thereof or terminate entirely the Total Commitment, whereupon the
Commitments of the Banks shall be reduced PRO RATA in accordance with
their respective Commitment Percentages of the amount specified in such
notice, or as the case may be, terminated. Promptly after receiving any
notice of the Borrower delivered pursuant to this ss.2.3.2, the Agent
will notify the Banks of the substance thereof.
2.4. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of EXHIBIT A hereto (each a "Note"), dated as of the Closing Date and completed
with appropriate insertions. One Note shall be payable to the order of each Bank
in a principal amount equal to such Bank's Commitment or, if less, the
outstanding amount of all Revolving Credit Loans made by such Bank, plus
interest accrued thereon, as set forth below. The Borrower irrevocably
authorizes each Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Revolving Credit Loan or at the time of receipt of any
payment of principal on such Bank's Note, an appropriate notation on such Bank's
Note Record reflecting the making of such Revolving Credit Loan or (as the case
may be) the receipt of such payment. The outstanding amount of the Revolving
Credit Loans set forth on such Bank's Note Record shall be PRIMA FACIE evidence
of the principal amount thereof owing and unpaid to such Bank, but the failure
to record, or any error in so recording, any such amount on such Bank's Note
Record shall not limit or otherwise affect the obligations of the Borrower
hereunder or under any Note to make payments of principal of or interest on any
Note when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided in
ss.4.11,
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the Base Rate, PLUS the Applicable Margin with respect to the Base Rate
Loans as in effect from time to time.
(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per
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annum equal to the Eurodollar Rate, PLUS the Applicable Margin with
respect to the Eurodollar Rate Loans as in effect from time to time.
(c) Each Federal Funds Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last
day of the Interest Period with respect thereto at the rate per annum
equal to the Federal Funds Rate, PLUS the Applicable Margin with respect
to the Federal Funds Rate Loans as in effect from time to time.
(d) The Borrower promises to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect
thereto.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS. The Borrower shall give to the
Agent written notice in the form of EXHIBIT B hereto (or telephonic notice
confirmed in a writing in the form of EXHIBIT B hereto) of each Revolving Credit
Loan requested hereunder (a "Loan Request") (a) no later than 11:00 a.m. (Boston
time) on the proposed Drawdown Date of any Base Rate Loan or Federal Funds Rate
Loan and (b) no less than three (3) Eurodollar Business Days prior to the
proposed Drawdown Date of any Eurodollar Rate Loan. Each such notice shall
specify (i) the principal amount of the Revolving Credit Loan requested, (ii)
the proposed Drawdown Date of such Revolving Credit Loan, (iii) the Interest
Period for such Revolving Credit Loan and (iv) the Type of such Revolving Credit
Loan. Promptly upon receipt of any such notice, the Agent shall notify each of
the Banks thereof. Each Loan Request shall be irrevocable and binding on the
Borrower and shall obligate the Borrower to accept the Revolving Credit Loan
requested from the Banks on the proposed Drawdown Date. Each Loan Request shall
be in a minimum aggregate amount of $500,000 or an integral multiple thereof.
2.7. CONVERSION OPTIONS.
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
Borrower may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
PROVIDED that (a) with respect to any such conversion of a Revolving
Credit Loan to a Base Rate Loan or to a Federal Funds Rate Loan, the
Borrower shall give the Agent at least three (3) Business Days prior
written notice of such election; (b) with respect to any such conversion
of a Base Rate Loan or a Federal Funds Rate Loan to a Eurodollar Rate
Loan, the Borrower shall give the Agent at least four (4) Eurodollar
Business Days prior written notice of such election; (c) with respect to
any such conversion of a Eurodollar Rate Loan into a Revolving Credit
Loan of another Type, such conversion shall only be made on the last day
of the Interest Period with respect thereto; and (d) no Revolving Credit
Loan may be converted into a Eurodollar Rate Loan or a Federal Funds
Rate Loan when any Default
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or Event of Default has occurred and is continuing. On the date on which
such conversion is being made each Bank shall take such action as is
necessary to transfer its Commitment Percentage of such Revolving Credit
Loans to its Domestic Lending Office or its Eurodollar Lending Office,
as the case may be. All or any part of outstanding Revolving Credit
Loans of any Type may be converted into a Revolving Credit Loan of
another Type as provided herein, PROVIDED that any partial conversion
shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof. Each Conversion Request relating to the conversion of
a Revolving Credit Loan to a Eurodollar Rate Loan or a Federal Funds
Rate Loan shall be irrevocable by the Borrower.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any
Revolving Credit Loan of any Type (other than Base Rate Loans) may be
continued as a Revolving Credit Loan of the same Type upon the
expiration of an Interest Period with respect thereto by compliance by
the Borrower with the notice provisions contained in ss.2.7.1; PROVIDED
that no Eurodollar Rate Loan or Federal Funds Rate Loan may be continued
as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on
the last day of the first Interest Period relating thereto ending during
the continuance of any Default or Event of Default of which officers of
the Agent active upon the Borrower's account have actual knowledge. In
the event that the Borrower fails to provide any such notice with
respect to the continuation of any Eurodollar Rate Loan or Federal Funds
Rate Loan as such, then such Eurodollar Rate Loan or Federal Funds Rate
Loan, as the case may be, shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating thereto.
The Agent shall notify the Banks promptly when any such automatic
conversion contemplated by this ss.2.7.2 is scheduled to occur.
2.7.3. EURODOLLAR RATE LOANS. Any conversion to or from Eurodollar
Rate Loans shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal
amount of all Eurodollar Rate Loans having the same Interest Period
shall not be less than $1,000,000 or a whole multiple of $1,000,000 in
excess thereof.
2.8. FUNDS FOR REVOLVING CREDIT LOANS.
2.8.1. FUNDING PROCEDURES. Not later than 1:00 p.m. (Boston time)
on the proposed Drawdown Date of any Revolving Credit Loans, each of the
Banks will make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Bank's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon
receipt from each Bank of such amount, and upon receipt of the documents
required by secs.10 and 11
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hereof and the satisfaction of the other conditions set forth therein,
to the extent applicable, the Agent will make available to the Borrower
the aggregate amount of such Revolving Credit Loans made available to
the Agent by the Banks. The failure or refusal of any Bank to make
available to the Agent at the aforesaid time and place on any Drawdown
Date the amount of its Commitment Percentage of the requested Revolving
Credit Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such
other Bank's Commitment Percentage of any requested Revolving Credit
Loans.
2.8.2. ADVANCES BY AGENT. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount of such
Bank's Commitment Percentage of the Revolving Credit Loans to be made on
such Drawdown Date, and the Agent may (but it shall not be required to),
in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Agent such
amount on a date after such Drawdown Date, such Bank shall pay to the
Agent on demand an amount equal to the product of (a) the average
computed for the period referred to in clause (c) below, of the weighted
average interest rate paid by the Agent for federal funds acquired by
the Agent during each day included in such period, TIMES (b) the amount
of such Bank's Commitment Percentage of such Revolving Credit Loans,
TIMES (c) a fraction, the numerator of which is the number of days that
elapse from and including such Drawdown Date to the date on which the
amount of such Bank's Commitment Percentage of such Revolving Credit
Loans shall become immediately available to the Agent, and the
denominator of which is 365. A statement of the Agent submitted to such
Bank with respect to any amounts owing under this paragraph shall be
PRIMA FACIE evidence of the amount due and owing to the Agent by such
Bank. If the amount of such Bank's Commitment Percentage of such
Revolving Credit Loans is not made available to the Agent by such Bank
within three (3) Business Days following such Drawdown Date, the Agent
shall be entitled to recover such amount from the Borrower on demand,
with interest thereon at the rate per annum applicable to the Revolving
Credit Loans made on such Drawdown Date.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. MATURITY. The Borrower promises to pay on the Revolving Credit Loan
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
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3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. If at any time the
sum of the outstanding amount of the Revolving Credit Loans exceeds the Total
Commitment, then the Borrower shall immediately pay the amount of such excess to
the Agent for application to the Revolving Credit Loans. Each prepayment of
Revolving Credit Loans shall be allocable among the Banks, in proportion, as
nearly as practicable, to the respective unpaid principal amount of each Bank's
Note, with adjustment to the extent practicable to equalize any prior payments
or prepayments not exactly in proportion.
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower shall
have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, PROVIDED that any full or partial prepayment of the outstanding amount
of any Eurodollar Rate Loans pursuant to this ss.3.3 may be made only on the
last day of the Interest Period relating thereto unless the Borrower indemnifies
the Banks as provided in ss.4.10(c). The Borrower shall give the Agent, no later
than 10:00 a.m., Boston time, at least three (3) Business Days prior written
notice of any proposed prepayment pursuant to this ss.3.3 of Base Rate Loans and
Federal Funds Rate Loans and four (4) Eurodollar Business Days notice of any
proposed prepayment pursuant to this ss.3.3 of Eurodollar Rate Loans, in each
case specifying the proposed date of prepayment of Revolving Credit Loans and
the principal amount to be prepaid. Each such partial prepayment of the
Revolving Credit Loans shall be in an integral multiple of $1,000,000, shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of prepayment and shall be applied, in the absence of instruction by the
Borrower, first to the principal of Federal Funds Rate Loans, second to the
principal of Base Rate Loans and then to the principal of Eurodollar Rate Loans.
Each partial prepayment shall be allocated among the Banks, in proportion, as
nearly as practicable, to the respective unpaid principal amount of each Bank's
Note, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
4. CERTAIN GENERAL PROVISIONS.
4.1. SYNDICATION FEE. The Borrower agrees to pay to the Syndication
Agent on the Closing Date the syndication fee as set forth in the Syndication
Fee Letter.
4.2. AGENT'S FEE. The Borrower shall pay to the Agent a nonrefundable
agent's fee at the times and in the amounts set forth in the Agent's Fee Letter.
4.3. FUNDS FOR PAYMENTS.
4.3.1. PAYMENTS TO AGENT. All payments of principal, interest,
commitment fees, and any other amounts due hereunder or under any of the
other Loan Documents (other than the syndication
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fee which shall be paid directly to the Syndication Agent pursuant to
the terms of the Syndication Fee Letter) shall be made to the Agent, for
the respective accounts of the Banks and the Agent, at the Agent's Head
Office or at such other location in the Boston, Massachusetts, area that
the Agent may from time to time designate, in each case in Dollars and
in immediately available funds.
4.3.2. NO OFFSET, ETC. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If
any such obligation is imposed upon the Borrower with respect to any
amount payable by it hereunder or under any of the other Loan Documents,
the Borrower will pay to the Agent, for the account of the Banks or (as
the case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Banks or the Agent
to receive the same net amount which the Banks or the Agent would have
received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Agent certificates
or other valid vouchers for all taxes or other charges deducted from or
paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.
4.4. COMPUTATIONS. All computations of interest on the Revolving Credit
Loans and of commitment fees or other fees shall be based on a 360-day year and
paid for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to Eurodollar Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Revolving Credit Loans as
reflected on the Records from time to time shall be considered correct and
binding on the Borrower unless within five (5) Business Days after receipt of
any notice by the Agent or any of the Banks of such outstanding amount, Borrower
shall notify the Agent or such Bank to the contrary.
4.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Agent shall determine that adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate that would otherwise determine the rate of
interest to be applicable to any Eurodollar Rate Loan
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during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (a) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and, unless a Federal Funds Rate Loan is elected by the Borrower
pursuant to ss.2.6, shall be deemed a request for Base Rate Loans, (b) each
Eurodollar Rate Loan will automatically, on the last day of the then current
Interest Period relating thereto, become a Base Rate Loan, and (c) the
obligations of the Banks to make Eurodollar Rate Loans shall be suspended until
the Agent or the Majority Banks determines that the circumstances giving rise to
such suspension no longer exist, whereupon the Agent, or, as the case may be,
the Agent upon the instruction of the Majority Banks, shall so notify the
Borrower and the Banks.
4.6. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and the other Banks and thereupon (a) the
commitment of such Bank to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (b) such
Bank's Revolving Credit Loans then outstanding as Eurodollar Rate Loans, if any,
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Eurodollar Rate Loans or within such earlier
period as may be required by law. The Borrower hereby agrees promptly to pay the
Agent for the account of such Bank, upon demand by such Bank, any additional
amounts necessary to compensate such Bank for any costs incurred by such Bank in
making any conversion in accordance with this ss.4.6, including any interest or
fees payable by such Bank to lenders of funds obtained by it in order to make or
maintain its Eurodollar Rate Loans hereunder.
4.7. ADDITIONAL COSTS, ETC. If any change in any present applicable law
or future applicable law, which expression, as used herein, includes statutes,
rules and regulations thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or official charged with
the administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, such Bank's Commitment or
the Revolving Credit Loans (other than taxes based upon or measured by
the income or profits of such Bank or the Agent), or
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(b) materially change the basis of taxation (except for changes
in taxes on income or profits) of payments to any Bank of the principal
of or the interest on any Revolving Credit Loans or any other amounts
payable to any Bank or the Agent under this Credit Agreement or any of
the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of an office of any
Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, the Revolving Credit Loans, such Bank's Commitment, or any
class of loans, letters of credit, or commitments of which any of the
Revolving Credit Loans or such Bank's Commitment forms a part,
and the result of any of the foregoing is
(i) to increase the cost to any Bank by an amount which
such Bank deems to be material of making, funding, issuing,
renewing, extending or maintaining any of the Revolving Credit
Loans or such Bank's Commitment, or
(ii) to reduce the amount of principal, interest or other
amount payable to such Bank or the Agent hereunder on account of
such Bank's Commitment or any of the Revolving Credit Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or other sum payable hereunder,
the amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable
or deemed received by such Bank or the Agent from the Borrower
hereunder,
then, and in each such case, the Borrower will, upon receipt of the certificate
referred to in ss.4.9 from such Bank or, as the case may be, the Agent, at any
time and from time to time and as often as the occasion thereof may arise, pay
to such Bank or the Agent such additional amounts as will be sufficient to
compensate such Bank or the Agent for such additional cost, reduction, payment
or foregone interest or other sum.
4.8. CAPITAL ADEQUACY. If after the date hereof any Bank or the Agent
determines in good faith and acting reasonably that (a) the adoption of or
change in any law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) regarding capital
33
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requirements for banks or bank holding companies or any change in the
interpretation or application thereof by a court or governmental authority with
appropriate jurisdiction, or (b) compliance by such Bank or the Agent or any
corporation controlling such Bank or the Agent with any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) of any such entity regarding capital adequacy, has the effect of reducing
the return on such Bank's or the Agent's commitment with respect to any
Revolving Credit Loans to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or the Agent's then existing policies with respect to
capital adequacy and assuming full utilization of such entity's capital) by any
amount deemed by such Bank or (as the case may be) the Agent to be material,
then such Bank or the Agent may notify the Borrower of such fact. To the extent
that the amount of such reduction in the return on capital is not reflected in
the Base Rate, the Borrower and such Bank shall thereafter attempt to negotiate
in good faith, within thirty (30) days of the day on which the Borrower receives
such notice, an adjustment payable hereunder that will adequately compensate
such Bank in light of these circumstances. If the Borrower and such Bank are
unable to agree to such adjustment within thirty (30) days of the date on which
the Borrower receives such notice, then commencing on the date of such notice
(but not earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount that will,
in such Bank's reasonable determination, provide adequate compensation. Each
Bank shall allocate such cost increases among its customers in good faith and on
an equitable basis.
4.9. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to secs.4.7 or 4.8 and a brief explanation in reasonable
detail of the basis for calculating the additional amounts which are due shall
be promptly submitted by any Bank or the Agent to the Borrower, and such
certificate shall be conclusive, absent manifest error, that such amounts are
due and owing.
4.10. INDEMNITY. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (excluding loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (a)
default by the Borrower in payment of the principal amount of or any interest on
any Eurodollar Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurodollar Rate Loans, (b) default
by the Borrower in making a borrowing or conversion after the Borrower has given
(or is deemed to have given) a Loan Request or a Conversion Request relating
thereto in accordance with ss.2.6 or ss.2.7 or (c) the making of any payment of
a Eurodollar Rate Loan or the making of any conversion of any such Eurodollar
Rate Loan to a Base Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto, including interest or
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fees payable by such Bank to lenders of funds obtained by it in order to
maintain any such Revolving Credit Loans.
4.11. INTEREST AFTER DEFAULT.
4.11.1. OVERDUE AMOUNTS. Overdue principal and (to the extent
permitted by applicable law) interest on the Revolving Credit Loans and
all other overdue amounts payable hereunder or under any of the other
Loan Documents shall bear interest compounded monthly and payable on
demand at a rate per annum equal to two percent (2%) above the rate of
interest otherwise applicable to Base Rate Loans until such amount shall
be paid in full (after as well as before judgment).
4.11.2. AMOUNTS NOT OVERDUE. During the continuance of any Event
of Default arising pursuant to ss.12.1(c) as it relates to ss.9 and so
long as the Banks have not accelerated the entire outstanding principal
amount of the Revolving Credit Loans, the principal of the Revolving
Credit Loans not overdue shall, until such Event of Default has been
cured or waived by the Majority Banks pursuant to ss.26, bear interest
(payable on demand) at a rate per annum equal to one and one-half
percent (1 1/2%) above the rate of interest otherwise applicable to such
Revolving Credit Loans pursuant to ss.2.5.
5. GUARANTIES.
The Obligations shall be guaranteed by the Guarantors pursuant to the
terms of the Guaranty.
6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks and the Agent as
follows:
6.1. CORPORATE AUTHORITY.
6.1.1. INCORPORATION; GOOD STANDING. Each of the Borrower and its
Subsidiaries (a) is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation, (b) has
all requisite corporate power to own its property and conduct its
business as now conducted and as presently contemplated, and (c) is in
good standing as a foreign corporation and is duly authorized to do
business in each jurisdiction where such qualification is necessary
except where a failure to be so qualified would not have a Material
Adverse Effect.
6.1.2. AUTHORIZATION. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the Borrower
or any of its Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (a) are
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within the corporate authority of such Person, (b) have been duly
authorized by all necessary corporate proceedings, (c) do not conflict
with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which the Borrower or any of its
Subsidiaries is subject or any judgment, order, writ, injunction,
license or permit applicable to the Borrower or any of its Subsidiaries
and (d) do not conflict with any provision of the corporate charter or
bylaws of, or any agreement or other instrument binding upon, the
Borrower or any of its Subsidiaries.
6.1.3. ENFORCEABILITY. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of
its Subsidiaries is or is to become a party will result in valid and
legally binding obligations of such Person enforceable against it in
accordance with the respective terms and provisions hereof and thereof,
except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent
that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
6.2. CAPITALIZATION; SUBSIDIARIES, ETC.
6.2.1. CAPITALIZATION. The Borrower's Equity Securities consist
solely of 60,000,000 shares of authorized common stock, $0.01 par value.
All of the outstanding Equity Securities of the Borrower are validly
issued, fully paid and non-assessable.
6.2.2. SUBSIDIARIES. SCHEDULE 6.2.2 attached hereto sets forth a
list of (a) each Subsidiary, Active Subsidiary, Advisory Subsidiary and
Broker-Dealer Subsidiary of the Borrower, (b) the number of authorized
and outstanding Equity Securities of each class of each Subsidiary of
the Borrower and the number and percentage thereof owned, directly or
indirectly, by the Borrower, and (c) any partnership or joint venture in
which the Borrower or any of its Subsidiaries is engaged with any other
Person. Except as set forth on SCHEDULE 6.2.2 hereto, neither the
Borrower nor any Subsidiary is engaged in any joint venture or
partnership with any other Person. All of the outstanding Equity
Securities of each Subsidiary of the Borrower are validly issued, fully
paid and non-assessable.
6.3. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrower and any of its Subsidiaries of this Credit Agreement and the other
Loan Documents to which the Borrower or any of its Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained.
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6.4. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 6.4
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
6.5. FINANCIAL STATEMENTS.
6.5.1. FISCAL YEAR. The Borrower and each of its Subsidiaries has
a fiscal year which is the twelve months ending on December 31 of each
calendar year.
6.5.2. FINANCIAL STATEMENTS. There has been furnished to each of
the Banks a consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and a consolidated statement
of income of the Borrower and its Subsidiaries for the fiscal year then
ended, certified by Ernst & Young LLP. Such balance sheet and statement
of income have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the
Borrower as at the close of business on the date thereof and the results
of operations for the fiscal year then ended. There are no contingent or
Derivatives liabilities of the Borrower or any of its Subsidiaries as of
such date involving material amounts, known to the officers of the
Borrower, which were not disclosed in such balance sheet and the notes
related thereto.
6.5.3. SOLVENCY. The Borrower and its Subsidiaries, on a
consolidated and consolidating basis, both before and after giving
effect to the transactions contemplated by this Credit Agreement and the
other Loan Documents (a) are solvent; (b) have assets having a fair
value in excess of their liabilities; (c) have assets having a fair
value in excess of the amount required to pay their liabilities on
existing debts as such debts become due and payable; and (d) have, and
expect to continue to have, access to adequate capital in the conduct of
their business and the ability to pay their debts from time to time
incurred in connection with the operation of their business as such
debts mature.
6.6. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date there has
occurred no materially adverse change in the financial condition or business of
the Borrower and its Subsidiaries as shown on or reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries as at the Balance Sheet Date,
or the consolidated statement of income for the fiscal year then ended, other
than changes in the ordinary course of business that have not had any Material
Adverse Effect. Since the Balance
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Sheet Date, the Borrower has not made any Distributions except as set forth on
SCHEDULE 6.6 hereto or permitted by ss.8.4 hereof.
6.7. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Except as disclosed on
SCHEDULE 6.7 hereto, each of the Borrower and its Subsidiaries owns or possesses
the right to use all patents, patent applications, patent rights, service marks,
service xxxx rights, trademarks, trademark rights, trade names, trade name
rights, copyrights, licenses, franchises, permits, leases, authorizations,
including authorizations under state securities laws, and rights in respect of
the foregoing, adequate for the conduct of its business substantially as now
conducted without known conflict with any rights of others. All of the foregoing
are in full force and effect, and each of the Borrower and its Subsidiaries is
in material compliance with the foregoing without any known conflict with
others. No event has occurred which permits, or after notice or lapse of time or
both would permit, the revocation or termination of any such license, franchise,
lease or other right or affects the rights of any of the Borrower or its
Subsidiaries thereunder which event would have a Material Adverse Effect. There
is no litigation or other proceeding or dispute with respect to the validity or,
where applicable, the extension or renewal, of any of the foregoing.
6.8. LITIGATION. Except as set forth in SCHEDULE 6.8 hereto, there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrower or any of its Subsidiaries before any court,
tribunal or administrative agency or board which (a) if adversely determined,
are reasonably likely, either in any case or in the aggregate, to have a
Material Adverse Effect or materially impair the right of the Borrower and its
Subsidiaries, considered as a whole, to carry on business substantially as now
conducted by them, or result in any substantial liability not adequately covered
by insurance or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower and its Subsidiaries; or (b) which
question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
6.9. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor any
of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries is a party to any contract or agreement that has or
is expected to have, in the judgment of the Borrower's officers, a Material
Adverse Effect.
6.10. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Borrower
nor any of its Subsidiaries is in violation of any provision of its charter
documents, bylaws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the
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foregoing cases in a manner that is reasonably likely to result in the
imposition of substantial penalties or have a Material Adverse Effect.
6.11. TAX STATUS. The Borrower and its Subsidiaries (a) have made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which any of them is subject, (b)
have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (c) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Borrower know of no basis for any such claim.
6.12. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
6.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of the Borrower or any of its Subsidiaries or any
rights relating thereto.
6.14. CERTAIN TRANSACTIONS. Except as set forth on SCHEDULE 6.14
attached hereto and except for arm's length transactions pursuant to which the
Borrower or any of its Subsidiaries makes payments in the ordinary course of
business upon terms no less favorable than the Borrower or such Subsidiary could
obtain from third parties, none of the officers, directors, or employees of the
Borrower or any of its Subsidiaries is presently a party to any transaction with
the Borrower or any of its Subsidiaries (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner.
6.15. EMPLOYEE BENEFIT PLANS.
6.15.1. IN GENERAL. Except as set forth on SCHEDULE 6.15 attached
hereto, each Employee Benefit Plan and each Guaranteed Pension Plan has
been maintained and operated in compliance in all material respects with
the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions
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thereunder respecting prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as required by ss.412
of ERISA. The Borrower has heretofore delivered to the Agent the most
recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under
ss.103(d) of ERISA, with respect to each Guaranteed Pension Plan.
6.15.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit Plan,
which is an employee welfare benefit plan within the meaning of ss.3(1)
or ss.3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of
ERISA or the applicable state insurance laws. The Borrower may terminate
each such Plan at any time (or at any time subsequent to the expiration
of any applicable bargaining agreement) in the discretion of the
Borrower without liability to any Person other than for claims arising
prior to termination.
6.15.3. GUARANTEED PENSION PLANS. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of ss.302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of amortization
periods has been received with respect to any Guaranteed Pension Plan,
and neither the Borrower nor any ERISA Affiliate is obligated to or has
posted security in connection with an amendment to a Guaranteed Pension
Plan pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code. No
liability to the PBGC (other than required insurance premiums, all of
which have been paid) has been incurred by the Borrower or any ERISA
Affiliate with respect to any Guaranteed Pension Plan and there has not
been any ERISA Reportable Event (other than an ERISA Reportable Event as
to which the requirement of 30 days notice has been waived), or any
other event or condition which presents a material risk of termination
of any Guaranteed Pension Plan by the PBGC. Based on the latest
valuation of each Guaranteed Pension Plan (which in each case occurred
within twelve months of the date of this representation), and on the
actuarial methods and assumptions employed for that valuation, the
aggregate benefit liabilities of all such Guaranteed Pension Plans
within the meaning of ss.4001 of ERISA did not exceed the aggregate
value of the assets of all such Guaranteed Pension Plans, disregarding
for this purpose the benefit liabilities and assets of any Guaranteed
Pension Plan with assets in excess of benefit liabilities.
6.15.4. MULTIEMPLOYER PLANS. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan under
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ss.4201 of ERISA or as a result of a sale of assets described in ss.4204
of ERISA. Neither the Borrower nor any ERISA Affiliate has been notified
that any Multiemployer Plan is in reorganization or insolvent under and
within the meaning of ss.4241 or ss.4245 of ERISA or is at risk of
entering reorganization or becoming insolvent, or that any Multiemployer
Plan intends to terminate or has been terminated under ss.4041A of
ERISA.
6.16. USE OF PROCEEDS.
6.16.1. GENERAL. The proceeds of the Revolving Credit Loans shall
be used to refinance existing Indebtedness outstanding under the
Original Credit Agreement, to make acquisitions permitted pursuant to
ss.8.5.1, and for working capital and other general corporate purposes.
6.16.2. REGULATIONS U AND X. No portion of any Revolving Credit
Loan is to be used for the purpose of purchasing or carrying any "margin
security" or "margin stock" as such terms are used in Regulations U and
X of the Board of Governors of the Federal Reserve System, 12 C.F.R.
Parts 221 and 224.
6.16.3. INELIGIBLE SECURITIES. No portion of the proceeds of any
Revolving Credit Loan is to be used for the purpose of (a) knowingly
purchasing, or providing credit support for the purchase of, Ineligible
Securities from a Section 20 Subsidiary during any period in which such
Section 20 Subsidiary makes a market in such Ineligible Securities, (b)
knowingly purchasing, or providing credit support for the purchase of,
during the underwriting or placement period, any Ineligible Securities
being underwritten or privately placed by a Section 20 Subsidiary, or
(c) making, or providing credit support for the making of, payments of
principal or interest on Ineligible Securities underwritten or privately
placed by a Section 20 Subsidiary and issued by or for the benefit of
the Borrower or any Subsidiary or other Affiliate of the Borrower.
6.17. ENVIRONMENTAL COMPLIANCE. The Borrower has reasonable knowledge of
the past and present condition and usage of the Real Estate and the operations
conducted thereon and, based upon such knowledge, has determined that:
(a) none of the Borrower, its Subsidiaries or any operator of the
Real Estate or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery
Act ("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1950 as amended ("CERCLA"), the Superfund Amendments
and Reauthorization Act of 1956 ("XXXX"), the Federal Clean Water Act,
the Federal Clean Air Act, the Toxic
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Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to health, safety or the environment
(hereinafter "Environmental Laws"), which violation would have a
Material Adverse Effect;
(b) neither the Borrower nor any of its Subsidiaries has received
notice from any third party including, without limitation, any federal,
state or local governmental authority, (i) that any one of them has been
identified by the United States Environmental Protection Agency ("EPA")
as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X;
(ii) that any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any
hazardous substances as defined by 42 U.S.C. ss.9601(14), any pollutant
or contaminant as defined by 42 U.S.C. ss.9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any
one of them has generated, transported or disposed of has been found at
any site at which a federal, state or local agency or other third party
has conducted or has ordered that any Borrower or any of its
Subsidiaries conduct a remedial investigation, removal or other response
action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or
legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances;
(c) except as set forth on SCHEDULE 6.17 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on
any portion of the Real Estate; (ii) in the course of any activities
conducted by the Borrower, its Subsidiaries or operators of its
properties, no Hazardous Substances have been generated or are being
used on the Real Estate except in accordance with applicable
Environmental Laws; (iii) there have been no releases (i.e. any past or
present releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping) or
threatened releases of Hazardous Substances on, upon, into or from the
properties of the Borrower or its Subsidiaries, which releases would
have a material adverse effect on the value of any of the Real Estate or
adjacent properties or the environment; (iv) to the best of the
Borrower's knowledge, there have been no releases on, upon, from or into
any real property in the vicinity of any of the Real Estate which,
through soil or groundwater contamination, may have come to be located
on, and which would have a material adverse effect on the value of, the
Real Estate; and (v) in addition, any Hazardous
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Substances that have been generated on any of the Real Estate have been
transported offsite only by carriers having an identification number
issued by the EPA, treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been and are,
to the best of the Borrower's knowledge, operating in compliance with
such permits and applicable Environmental Laws; and
(d) None of the Borrower and its Subsidiaries or any of the Real
Estate is subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a condition
to the effectiveness of any other transactions contemplated hereby.
6.18. BROKER-DEALER SUBSIDIARIES. Each of the Broker-Dealer Subsidiaries
is duly registered as a broker-dealer with the Securities Exchange Commission
under the Exchange Act, is a member in good standing of the NASD and the
securities exchanges listed on SCHEDULE 6.18(a) attached hereto and is duly
registered, licensed or qualified as a broker or dealer under the laws of each
jurisdiction listed on SCHEDULE 6.18(a) attached hereto. Each Broker-Dealer
Subsidiary is in compliance with the Exchange Act and the rules and regulations
thereunder applicable to it, the rules and regulations of the NASD applicable to
it (including the NASD's rules of fair practice), the rules and regulations of
the securities exchanges of which it is a member, and the laws of each
jurisdiction where it is registered as a broker or dealer, except for such
instances of non-compliance (a) that relate to a matter set forth on SCHEDULE
6.18(b) attached hereto or (b) the correction of which would not interfere
significantly with the ability of such Broker-Dealer Subsidiary to conduct its
business substantially as currently conducted or significantly diminish the
value of the Borrower and its Subsidiaries, taken as a whole. Each of the
Broker-Dealer Subsidiaries acts pursuant to written agreements and related
documentation (collectively, the "Broker-Dealer Agreements") with parties to
whom it provides broker dealer services. The Broker-Dealer Agreements have not
been modified by any terms that are not included in the Broker-Dealer
Subsidiary's files, and none of the Broker-Dealer Subsidiaries has violated or
is in default under, any Broker-Dealer Agreement, except for such violations or
defaults which could not reasonably be expected to have a Material Adverse
Effect.
6.19. ADVISORY SUBSIDIARIES. Each of the Advisory Subsidiaries is duly
registered as an investment adviser with the Securities and Exchange Commission
under the Advisers Act and is duly registered, licensed or qualified as an
investment adviser under the laws of each jurisdiction listed
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on SCHEDULE 6.19(a) attached hereto. Each of the Advisory Subsidiaries is in
compliance with the Advisers Act and the laws of each jurisdiction where it is
registered as an investment adviser, except for such instances of non-compliance
(a) that related to a matter set forth on SCHEDULE 6.19(b) attached hereto, or
(b) the correction of which would not interfere significantly with the ability
of such Advisory Subsidiary to conduct its business substantially as currently
conducted or significantly diminish the value of the Borrower and its
Subsidiaries, taken as a whole. Each of the Advisory Subsidiaries acts pursuant
to an Advisory Agreement with parties to whom they provide investment advisory
services. Each Advisory Agreement complies as to form with the requirements of
the Advisers Act. The Advisory Agreements have not been modified by any terms,
oral or otherwise, that are not included in the Advisory Subsidiaries' files,
and none of the Advisory Subsidiaries has violated, or is in default under, any
Advisory Agreement, except for such violations or defaults which could not
reasonably be expected to have a Material Adverse Effect.
6.20. INVESTMENT FUND CLIENTS. SCHEDULE 6.20 (as such schedule may be
supplemented from time to time by the Borrower) sets forth a list of all
agreements (the "Fund Agreements") pursuant to which the Borrower or any of its
Subsidiaries performs investment advisory, administration or distribution
services for the benefit of any Fund or Trust. Each Trust is registered as an
investment company under the Investment Company Act. All outstanding shares of
each Trust that are required to be registered under the Securities Act have been
sold pursuant to an effective registration statement filed thereunder or qualify
for an exemption from registration thereunder and have been sold only in states
where all applicable filings have been made. No such registration statement
contained, as of its effective date, and no prospectus or other offering
material used in connection with the sale of shares of any Trust contained, as
of any date on which it was used, any untrue statement of a material fact or
omitted to state a material fact required to be stated therein in order to make
the statements therein not misleading. Each Fund Agreement complies as to form
with the requirements of the Investment Company Act and, to the knowledge of the
Borrower, has been adopted in compliance with the requirements of such Act. To
the knowledge of the Borrower, the Fund Agreements have not been modified by any
terms, oral or otherwise, that are not included in the Borrower's and the
Subsidiaries' files and none of the Borrower or its Subsidiaries has any
liability under any Fund Agreement, except for such violations or defaults which
could not reasonably be expected to have a Material Adverse Effect.
6.21. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or, except as disclosed on SCHEDULE 6.21, an "affiliated
company" or a "principal underwriter" of an
44
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"investment company", as such terms are defined in the Investment Company Act.
6.22. DISCLOSURE. None of this Credit Agreement or any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact (known to the Borrower or any of its Subsidiaries in the case of
any document or information not furnished by it or any of its Subsidiaries)
necessary in order to make the statements herein or therein not misleading.
6.23. CAPITALIZATION DOCUMENTS. The Borrower has delivered to the Agent
true and complete copies of all of the Capitalization Documents, and the
Borrower and such Subsidiaries have not amended any of such documents in any
material respect. Each of the representations and warranties made by the
Borrower and such Subsidiaries in any of the Capitalization Documents was true
and correct in all material respects when made and continues to be true and
correct in all material respects on the Closing Date, except to the extent that
any of such representations and warranties relate, by the express terms thereof,
solely to a date falling prior to the Closing Date, and except to the extent
that any of such representations and warranties may have been affected by the
consummation of the transactions contemplated and permitted or required by the
Loan Documents.
6.24. CHIEF EXECUTIVE OFFICE. The Borrower's chief executive office is
at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, at which location its
books and records are kept.
7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan or Note is outstanding or any Bank has any obligation to make any Revolving
Credit Loans:
7.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Revolving Credit Loans, the
commitment fees, the Agent's fee and all other amounts provided for in this
Credit Agreement and the other Loan Documents to which the Borrower or any of
its Subsidiaries is a party, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
7.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, or at
such other place in the United States of America as the Borrower shall designate
upon written notice to the Agent, where notices, presentations and demands to or
upon the Borrower in respect of the Loan Documents to which the Borrower is a
party may be given or made.
7.3. RECORDS AND ACCOUNTS. The Borrower will (a) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of
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account in which full, true and correct entries will be made in accordance with
generally accepted accounting principles, (b) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties and the properties of its
Subsidiaries, contingencies, and other reserves, and (c) at all times engage
nationally recognized independent certified public accountants satisfactory to
the Agent (it being acknowledged that any of the so-called "Big 6" accounting
firms are satisfactory to the Agent) as the independent certified public
accountants of the Borrower and its Subsidiaries and will not permit more than
thirty (30) days to elapse between the cessation of such firm's (or any
successor firm's) engagement as the independent certified public accountants of
the Borrower and its Subsidiaries and the appointment in such capacity of a
successor firm as shall be satisfactory to the Agent.
7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrower
will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries and the
consolidating balance sheet of the Borrower and its Subsidiaries, each
as at the end of such year, and the related consolidated statement of
income and consolidated statement of cash flow and consolidating
statement of income and consolidating statement of cash flow for such
year, each setting forth in comparative form the figures for the
previous fiscal year and all such consolidated and consolidating
statements to be in reasonable detail, prepared in accordance with
generally accepted accounting principles, and certified without
qualification by nationally recognized independent certified public
accountants satisfactory to the Agent, together with a written statement
from such accountants to the effect that they have read a copy of this
Credit Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event
of Default under ss.9 hereof, or, if such accountants shall have
obtained knowledge of any then existing Default or Event of Default
under ss.9 hereof they shall disclose in such statement any such Default
or Event of Default; PROVIDED that such accountants shall not be liable
to the Banks for failure to obtain knowledge of any Default or Event of
Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of the
Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries and the unaudited consolidating balance
sheet of the Borrower and its Subsidiaries, each as at the end of such
quarter, and the related consolidated statement of income and
consolidated statement of cash flow and consolidating statement of
income and consolidating statement of cash flow for the
46
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portion of the Borrower's fiscal year then elapsed, all in reasonable
detail and prepared in accordance with generally accepted accounting
principles, together with a certification by the principal financial or
accounting officer of the Borrower that the information contained in
such financial statements fairly presents the financial position of the
Borrower and its Subsidiaries on the date thereof (subject to year-end
adjustments and the absence of footnotes);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by
the principal financial or accounting officer of the Borrower in
substantially the form of EXHIBIT C hereto (a "Compliance Certificate")
and setting forth in reasonable detail computations evidencing
compliance with the covenants contained in ss.9 and (if applicable)
reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature filed with the Securities and
Exchange Commission or sent to the stockholders of the Borrower;
(e) contemporaneously with the filing thereof with the New York
Stock Exchange, copies of all quarterly Focus Reports of the
Broker-Dealer Subsidiaries; and
(f) from time to time such other financial data and information
(including accountants' management letters) as the Agent or any Bank may
reasonably request.
7.5. NOTICES.
7.5.1. DEFAULTS. The Borrower will promptly notify the Agent and
each of the Banks in writing of the occurrence of any Default or Event
of Default. If any Person shall give any notice or take any other action
in respect of a claimed default (whether or not constituting an Event of
Default) under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other obligations, in each case in excess of
$1,000,000, to which or with respect to which the Borrower or any of its
Subsidiaries is a party or obligor, whether as principal, guarantor,
surety or otherwise, the Borrower shall forthwith give written notice
thereof to the Agent and each of the Banks, describing the notice or
action and the nature of the claimed default.
7.5.2. ENVIRONMENTAL EVENTS. The Borrower will promptly give
notice to the Agent and each of the Banks (a) of any violation of any
Environmental Law that the Borrower or any of its Subsidiaries reports
in writing or is reportable by such Person in writing (or for which any
written report supplemental to any oral report is made) to
47
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any federal, state or local environmental agency and (b) upon becoming
aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental
liability, of any federal, state or local environmental agency or board,
that has the potential to have a Material Adverse Effect.
7.5.3. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower will, and
will cause each of its Subsidiaries to, give notice to the Agent and
each of the Banks in writing within fifteen (15) days of becoming aware
of any litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrower or any of its
Subsidiaries or to which the Borrower or any of its Subsidiaries is or
becomes a party involving an uninsured claim against the Borrower or any
of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect and stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its Subsidiaries
to, give notice to the Agent and each of the Banks, in writing, in form
and detail satisfactory to the Agent, within ten (10) days of any
judgment not covered by insurance, final or otherwise, against the
Borrower or any of its Subsidiaries in an amount in excess of
$2,000,000.
7.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. The Borrower will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights and franchises and those of its
Subsidiaries and will not, and will not cause or permit any of its Subsidiaries
to, convert to a limited liability company. It (a) will cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
(b) will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Borrower may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, and (c) will, and will cause
each of its Subsidiaries to, continue to engage primarily in the businesses now
conducted by them and in related businesses; PROVIDED that nothing in this
ss.7.6 shall prevent the Borrower from discontinuing the operation and
maintenance of any of its properties or any of those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its or their business and that do not in the aggregate have a Material Adverse
Effect.
7.7. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic
48
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areas and in amounts, containing such terms, in such forms and for such periods
as may be reasonable and prudent.
7.8. TAXES. The Borrower will, and will cause each of its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
(other than taxes, assessments and other governmental charges imposed by foreign
jurisdictions that do not have a Material Adverse Effect) imposed upon it and
its real properties, sales and activities, or any part thereof, or upon the
income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a lien or charge upon any of its
property; PROVIDED that any such tax, assessment, charge, levy or claim need not
be paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Borrower or such Subsidiary shall
have set aside on its books adequate reserves with respect thereto; and PROVIDED
FURTHER that the Borrower and each Subsidiary of the Borrower will pay all such
taxes, assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
7.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
7.9.1. GENERAL. The Borrower shall permit the Banks, through the
Agent or any of the Banks' other designated representatives, to visit
and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of the Borrower and its
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or any
Bank may reasonably request, PROVIDED that, unless an Event of Default
has occurred and is continuing, all such inspections shall be upon
reasonable notice and at reasonable times and the Banks shall only be
entitled to make one such inspection in any calendar quarter.
7.9.2. COMMUNICATIONS WITH ACCOUNTANTS. The Borrower authorizes
the Agent and, if accompanied by the Agent, the Banks to communicate
directly with the Borrower's independent certified public accountants
and authorizes such accountants to disclose to the Agent and the Banks
any and all financial statements and other supporting financial
documents and schedules including copies of any management letter with
respect to the business, financial condition and other affairs of the
Borrower or any of its Subsidiaries, PROVIDED, however, that if no Event
of Default has occurred and is continuing, any communication with the
Borrower's accountants shall be coordinated through the Borrower and
will not be conducted without the Borrower's participation. At the
request of the Agent, the
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Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this ss.7.9.2.
7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. (a) The
Borrower will, and will cause each of its Subsidiaries to, comply with (i) the
applicable laws and regulations wherever its business is conducted, including
Environmental Laws; (ii) the provisions of its charter documents and by-laws,
(iii) all agreements and instruments by which it or any of its properties may be
bound and (iv) all applicable decrees, orders, and judgments. If any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower or any of its Subsidiaries may fulfill any of its obligations
hereunder or under any of the other Loan Documents to which the Borrower or such
Subsidiary is a party, the Borrower will or, as the case may be, will cause such
Subsidiary to, immediately take or cause to be taken all steps within the power
of the Borrower or such Subsidiary to obtain such authorization, consent,
approval, permit or license and furnish the Agent and the Banks with evidence
thereof.
(b) The Borrower will cause each of its Advisory Subsidiaries to
maintain its registration as an investment adviser under the Advisers Act and
each of its Broker-Dealer Subsidiaries to maintain its registration as a broker
or a dealer under the Exchange Act, PROVIDED that nothing in this sentence shall
prevent any such Subsidiary from discontinuing such registration if such
discontinuation is, in the judgment of the Borrower, desirable for the conduct
of their business and such discontinuations, in the aggregate, do not have a
Material Adverse Effect. Each of the Borrower and its Subsidiaries will comply,
and will use reasonable efforts to cause each Fund and Trust to comply to the
extent applicable (subject to the discretion of its trustees or directors), with
the Investment Company Act, the Advisers Act, the Exchange Act, the Securities
Act (including the continued registration of the shares representing beneficial
interests of, or common stock in, each Fund or Trust), the rules and regulations
of the NASD, subchapter M of the Code (to the extent of each Fund's or Trust's
continued qualification as a regulated investment company thereunder and subject
to the Borrower's or the applicable Advisory Subsidiary's reasonable business
judgment that such compliance is not in the interests of such Fund or Trust),
the Commodities Act, any other law, statue, rule or regulation governing
investment advisers, investment companies, broker-dealers, underwriters,
custodians or transfer agents, including capital requirements, and all other
valid and applicable statutes, ordinances, zoning and building codes and other
rules and regulations of the United States of America, of the states and
territories thereof and their counties, municipalities and other subdivisions
and of any foreign country or other jurisdictions applicable to such Person,
except where compliance therewith shall at the time be contested in good faith
by appropriate proceedings.
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7.11. EMPLOYEE BENEFIT PLANS. The Borrower will (a) promptly upon
request of the Agent furnish to the Agent a copy of the most recent actuarial
statement required to be submitted under ss.103(d) of ERISA and Annual Report,
Form 5500, with all required attachments, in respect of each Guaranteed Pension
Plan and (b) promptly upon receipt or dispatch, furnish to the Agent any notice,
report or demand sent or received in respect of a Guaranteed Pension Plan under
secs.302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect
of a Multiemployer Plan, under secs.4041A, 4202, 4219, 4242, or 4245 of ERISA.
7.12. USE OF PROCEEDS. The Borrower will use the proceeds of the
Revolving Credit Loans solely to refinance existing Indebtedness outstanding
under the Original Credit Agreement, to make acquisitions permitted by ss.8.5.1,
and for working capital and other general corporate purposes.
7.13. ADDITIONAL SUBSIDIARIES. If, after the Closing Date, the Borrower
or any of its Subsidiaries creates or acquires, either directly or indirectly,
any Subsidiary, it will notify the Banks within three (3) Business Days of such
creation or acquisition, as the case may be, provide the Banks with an updated
SCHEDULE 6.2, and take all other actions required by ss.7.14 and ss.8.5.1.
7.14. GUARANTORS.
7.14.1. SUBSIDIARIES OTHER THAN BROKER-DEALER SUBSIDIARIES.
The Borrower will cause each Active Subsidiary, other than
Broker-Dealer Subsidiaries, created, acquired or existing on or
after the Closing Date to become a Guarantor immediately and
shall cause such Subsidiary to execute and deliver to the Agent
for the benefit of the Agent and the Banks a Guaranty (or an
Instrument of Adherence to any Guaranty executed after the
Closing Date), together with legal opinions in form and substance
satisfactory to the Agent and the Banks to be delivered to the
Agent and the Banks opining as to the authorization, validity and
enforceability of such Guaranty or Instrument of Adherence.
7.14.2. BROKER-DEALER SUBSIDIARIES. The Borrower shall
cause each Broker-Dealer Subsidiary that is an Active Subsidiary
to execute and deliver to the Bank an Instrument of Adherence to
the Guaranty, together with such supporting documentation,
including legal opinions and corporate authority documents as the
Banks may reasonably request, on the date which is five (5)
Business Days after the later of (i) the date on which such
Person becomes a Subsidiary of the Borrower and (ii) the date on
which the net capital requirements under the Exchange Act are no
longer applicable
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to such Broker-Dealer Subsidiary or permit the execution and
delivery of such Instrument of Adherence by such Broker-Dealer
Subsidiary.
7.15. YEAR 2000 PROBLEM. The Borrower and its Subsidiaries shall, in a
timely manner, but in no event later than October 31, 1999, review the areas
within their businesses and operations which could be adversely affected by, and
shall develop a program to address on a timely basis, the "Year 2000 Problem"
(i.e., the risk that computer applications used by the Borrower or any
Subsidiaries may be unable to recognize or perform properly date sensitive
functions involving certain dates prior to, and any date after, December 31,
1999).
7.16. FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Banks and the Agent and execute such further
instruments and documents as the Banks or the Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan or Note is outstanding or any Bank has any obligation to make any Revolving
Credit Loans:
8.1. RESTRICTIONS ON INDEBTEDNESS. If any Default or Event of Default
has occurred and is continuing or would exist as a result thereof, the Borrower
will not, and will not permit any of its Subsidiaries to, create, incur, assume,
or guarantee any Indebtedness. In addition, neither the Borrower nor any
Subsidiary shall be permitted to create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness which
in any manner ranks senior to the Obligations.
8.2. RESTRICTIONS ON LIENS. The Borrower will not, and will not permit
any of its Subsidiaries to, (a) create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (b) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (c) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (d) suffer to exist
for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; (e) sell, assign, pledge or otherwise
transfer any accounts, contract rights, general
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intangibles, chattel paper or instruments, with or without recourse, except that
the Borrower and its Subsidiaries may sell assets to the extent permitted under
ss.8.5.2 hereof; or (f) enter into, or permit to remain in effect, any agreement
or arrangement by which such Person agrees not to encumber, mortgage, pledge,
restrict or grant a security interest in any of its assets; PROVIDED that the
Borrower and any Subsidiary of the Borrower may create or incur or suffer to be
created or incurred or to exist:
(a) liens in favor of the Borrower on all or part of the assets
of Subsidiaries of the Borrower securing Indebtedness owing by
Subsidiaries of the Borrower to the Borrower;
(b) liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens on properties to
secure claims for labor, material or supplies in respect of obligations
not overdue;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) liens on properties in respect of judgments or awards that
have been in force for less than the applicable period for taking an
appeal so long as execution is not levied thereunder or in respect of
which the Borrower or such Subsidiary shall at the time in good faith be
prosecuting an appeal or proceeding for review and in respect of which a
stay of execution shall have been obtained pending such appeal or
review;
(e) liens of carriers, warehousemen, mechanics and materialmen,
and other like liens on, in existence less than 120 days from the date
of creation thereof in respect of obligations not overdue;
(f) encumbrances on Real Estate consisting of easements, rights
of way, zoning restrictions, restrictions on the use of real property
and defects and irregularities in the title thereto, landlord's or
lessor's liens under leases to which the Borrower or a Subsidiary of the
Borrower is a party, and other minor liens or encumbrances none of which
in the opinion of the Borrower interferes materially with the use of the
property affected in the ordinary conduct of the business of the
Borrower and its Subsidiaries, which defects do not individually or in
the aggregate have a Material Adverse Effect;
(g) presently outstanding liens listed on SCHEDULE 8.2 attached
hereto and other liens securing renewals, extensions or refinancings of
Indebtedness such liens currently secure to the extent such refinancing
Indebtedness is permitted to be incurred under ss.8.1;
(h) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date hereof
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to secure purchase money Indebtedness permitted to be incurred pursuant
to ss.8.1 and incurred in connection with the acquisition of such
property, which security interests or mortgages cover only the real or
personal property so acquired;
(i) liens in respect of Indebtedness of Broker-Dealer
Subsidiaries permitted by ss.8.1 hereof;
(j) liens in respect of securities repurchase agreements of a
Broker-Dealer Subsidiary; and
(k) involuntary liens which do not secure any obligation which is
otherwise prohibited by this Agreement and which are removed or
discharged within thirty (30) days so long as (i) the Borrower
immediately (and in any event within ten days of imposition of the lien)
gives the Banks written notice of the lien, (ii) the Borrower in the
Banks' reasonable judgment is taking all reasonable steps to remove the
lien, (iii) in the Banks' reasonable judgment there is a reasonable
likelihood the lien will be removed and (iv) no foreclosure proceedings
are instituted or execution levied.
8.3. RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except:
(a) in marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Borrower;
(b) in demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets
in excess of $1,000,000,000;
(c) in securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States
of America or any state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P 1" if rated by
Xxxxx'x Investors Service, Inc., and not less than "A 1" if rated by
Standard and Poor's;
(d) Investments existing on the date hereof and listed on
SCHEDULE 8.3 attached hereto;
(e) Investments in investment companies sponsored by the Borrower
or any of its Subsidiaries for which any Advisory Subsidiary is or will
become an investment adviser;
(f) Investments consisting of the Guaranty and any Instruments of
Adherence and Investments by the Borrower in Subsidiaries of the
Borrower (including Persons which immediately
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become Subsidiaries as a result of an acquisition permitted by ss.8.5.1)
so long as such entities remain Subsidiaries of the Borrower;
(g) Investments by the Broker-Dealer Subsidiaries; and
(h) Investments by the Borrower and Subsidiaries of the Borrower
(other than the Broker-Dealer Subsidiaries), PROVIDED that the aggregate
amount of such Investments does not exceed $20,000,000.
8.4. RESTRICTED PAYMENTS. (a) The Borrower will not make any Restricted
Payments; PROVIDED, HOWEVER, so long as no Default or Event of Default has
occurred and is continuing or would exist as a result thereof, the Borrower
shall be permitted to make Distributions.
(b) Except pursuant to applicable net capital requirements under the
Exchange Act and agreements with securities exchanges, neither the Borrower nor
any Subsidiary of the Borrower will enter into or be bound by any agreement
(including covenants requiring the maintenance of specified amounts of net worth
or working capital) restricting the right of any Subsidiary of the Borrower to
make Distributions (in cash or in kind) or extensions of credit or other
payments of whatsoever nature or to make transfers or distributions of all or
any part of its assets to the Borrower (directly or indirectly through another
Subsidiary) unless such agreements are reasonably acceptable to the Majority
Banks.
8.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
8.5.1. MERGERS AND ACQUISITIONS. The Borrower will not, and will
not permit any of its Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course
of business consistent with past practices) except the merger or
consolidation of one or more of the Subsidiaries of the Borrower with
and into the Borrower, or the merger or consolidation of two or more
Subsidiaries of the Borrower, UNLESS (a) no Default or Event of Default
has occurred and is continuing at the time of any such merger,
consolidation or acquisition or would result therefrom and (b) if the
Borrower or any Guarantor is a party to any such merger or
consolidation, the Borrower or such Guarantor, as the case may be, is
the surviving entity.
8.5.2. DISPOSITION OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or
effect any Asset Sale, whether in one transaction or a series of
transactions (other than the disposition of assets in the ordinary
course of business, consistent with past practices), other than sales by
any Broker-Dealer Subsidiary of Investments permitted under ss.8.3(g),
if in any fiscal year such assets constitute 10% or more of the
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Consolidated Total Assets of the Borrower and its Subsidiaries as of the
first day of such fiscal year.
8.6. SALE AND LEASEBACK. The Borrower will not, and will not permit any
of its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby the Borrower or any Subsidiary of the Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower or any Subsidiary of the Borrower intends
to use for substantially the same purpose as the property being sold or
transferred, other than any such arrangement which is permitted under ss.8.1
hereof.
8.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will not, and will
not permit any of its Subsidiaries to, (a) use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real Estate, (d)
conduct any activity at any Real Estate or use any Real Estate in any manner so
as to cause a release (i.e. releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on, upon or into the Real
Estate or (e) otherwise conduct any activity at any Real Estate or use any Real
Estate in any manner that would violate any Environmental Law or bring such Real
Estate in violation of any Environmental Law.
8.8. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether
or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any of its Subsidiaries pursuant to ss.302(f)
or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring
the posting of security pursuant to ss.307 of ERISA or ss.401(a)(29) of
the Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of
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all Guaranteed Pension Plans exceeding the value of the aggregate assets
of such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities by
more than $5,000,000.
8.9. BUSINESS ACTIVITIES. The Borrower will not, and will not permit any
of its Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Closing Date and in related businesses.
8.10. CHANGE IN TERMS OF EQUITY SECURITIES; ISSUANCE OF EQUITY
SECURITIES BY SUBSIDIARIES. (a) The Borrower will not permit any of its
Subsidiaries to effect or permit any change in or amendment to any of the
Capitalization Documents or any other document or instrument pertaining to the
terms of such Person's Equity Securities without the prior written consent of
the Banks.
(b) The Borrower will not permit any of its Subsidiaries to issue or
sell any Equity Securities to any Person other than the Borrower or any
wholly-owned Subsidiary of the Borrower.
8.11. FISCAL YEAR. The Borrower will not, and will not permit any of it
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in ss.6.5.1.
8.12. TRANSACTIONS WITH AFFILIATES. Except for activities listed on
SCHEDULE 6.14 hereto, the Borrower will not, and will not permit any of its
Subsidiaries to, engage in any transaction with any Affiliate (other than for
services as employees, officers and directors and other than intercompany
transactions among the Borrower and its Subsidiaries), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such Affiliate or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any such
Affiliate has a substantial interest or is an officer, director, trustee or
partner, on terms more favorable to such Person than would have been obtainable
on an arm's-length basis in the ordinary course of business.
8.13. INCONSISTENT AGREEMENTS. Neither the Borrower nor any of its
Subsidiaries will, nor will they permit their Subsidiaries to, enter into any
agreement containing any provision which would be violated or breached by the
performance by the Borrower or such Subsidiary of its obligations hereunder or
under any of the Loan Documents.
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9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan or Note is outstanding or any Bank has any obligation to make any Revolving
Credit Loans:
9.1. FUNDED DEBT TO NET WORTH. The Borrower will not at any time permit
the ratio of Funded Debt to Consolidated Net Worth to exceed 0.35 to 1.
9.2. NET WORTH. The Borrower will not permit, at any time, the
Consolidated Net Worth of the Borrower and its Subsidiaries to be less than (a)
$150,000,000, PLUS, on a cumulative basis (b) 50% of positive Consolidated Net
Income of the Borrower and its Subsidiaries earned during each fiscal quarter of
the Borrower commencing with the fiscal quarter ending September 30, 1998, PLUS
(c) 75% of the Net Cash Proceeds of any Equity Issuance.
10. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Revolving Credit Loans
shall be subject to the satisfaction of the following conditions precedent on or
before August 21, 1998:
10.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
10.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Banks shall
have received from the Borrower and each of its Active Subsidiaries a copy,
certified by a duly authorized officer of such Person to be true and complete on
the Closing Date, of each of (a) its charter or other incorporation documents as
in effect on such date of certification, and (b) its by-laws as in effect on
such date.
10.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each of its Subsidiaries
of this Credit Agreement and the other Loan Documents to which it is or is to
become a party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Banks shall have been provided to each of the Banks.
10.4. INCUMBENCY CERTIFICATE. Each of the Banks shall have received from
the Borrower and each of its Subsidiaries party to any of the Loan Documents an
incumbency certificate, dated as of the Closing Date, signed by a duly
authorized officer of the Borrower or such Subsidiary, and giving the name and
bearing a specimen signature of each individual who shall be authorized: (a) to
sign, in the name and on behalf of each of the
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Borrower of such Subsidiary, each of the Loan Documents to which the Borrower or
such Subsidiary is or is to become a party; (b) in the case of the Borrower, to
make Loan Requests and Conversion Requests; and (c) to give notices and to take
other action on its behalf under the Loan Documents.
10.5. UCC SEARCH RESULTS. The Agent shall have received from each of the
Borrower and its Active Subsidiaries the results of UCC searches, indicating no
liens other than Permitted Liens.
10.6. CERTIFICATES OF INSURANCE. The Agent shall have received a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits and
policy terms.
10.7. SOLVENCY CERTIFICATE. Each of the Banks shall have received an
officer's certificate of the Borrower dated as of the Closing Date as to the
solvency of the Borrower and its Subsidiaries following the consummation of the
transactions contemplated herein and in form and substance satisfactory to the
Banks.
10.8. OPINIONS OF COUNSEL. Each of the Banks and the Agent shall have
received a favorable opinion addressed to the Banks and the Agent, dated as of
the Closing Date, in form and substance satisfactory to the Banks and the Agent
from each of Xxxxxxxx, Xxxxxxx & Xxxxxxx, a Professional Corporation, counsel to
the Borrower and its Subsidiaries party to the Loan Documents.
10.9. PAYMENT OF FEES. The Borrower shall have paid to the Banks or the
Agent, as appropriate, the fees required to be paid pursuant to the Fee Letter.
10.10. FINANCIAL STATEMENTS AND FOCUS REPORTS. The Borrower shall have
delivered to the Banks (a) the information specified in ss.7.4(a) for the most
recently ended Fiscal Year and (b) a copy of the most recently filed Focus
Reports of the Broker-Dealer Subsidiaries.
10.11. FEDERAL RESERVE FORMS U-1. The Borrower shall have completed,
executed and delivered to each Bank a Federal Reserve Form U-1 with respect to
the transactions contemplated herein.
10.12. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower in the Loan Documents or otherwise made by or on
behalf of the Borrower in connection therewith or after the date thereof shall
have been true and correct in all material respects.
10.13. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement and the other Loan Documents
shall be satisfactory to the Agent and the Agent's Special Counsel in form and
substance, and the Agent shall have received all information and such
counterpart originals or certified copies of such
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documents and such other certificates, opinions or documents as the Agent and
the Agent's Special Counsel may reasonably require.
10.14. UCC TERMINATIONS. The Agent shall have received evidence that all
of the Borrower's obligations under the Original Credit Agreement have been
repaid in full, that all commitments thereunder have been terminated and that
all UCC-3 terminations and other discharges as are necessary to release the
security interests granted pursuant to the Original Credit Agreement have been
received.
11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Revolving Credit Loan, whether
on or after the Closing Date, shall also be subject to the satisfaction of the
following conditions precedent:
11.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement and the other Loan Documents shall be true as
of the date as of which they were made and shall also be true at and as of the
time of the making of such Revolving Credit Loan, with the same effect as if
made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate will not have a Material Adverse Effect, and to the
extent that such representations and warranties relate expressly to an earlier
date) and no Default or Event of Default shall have occurred and be continuing.
11.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Revolving Credit
Loan.
11.3. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
11.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agent and the Agent's Special Counsel, and the
Banks, the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
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12. EVENTS OF DEFAULT; ACCELERATION; ETC.
12.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Revolving
Credit Loans when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay any
interest on the Revolving Credit Loans, the commitment fee, the Agent's
fee, or other sums due hereunder or under any of the other Loan
Documents, within three (3) days of the date when the same shall become
due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with any of its covenants
contained in secs.7 (other than secs.7.5.2, 7.7, 7.11 or 7.13), 8 or 9
hereof, or any of the covenants contained in the Guaranty;
(d) the Borrower or any of its Subsidiaries shall fail to perform
any term, covenant or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere in this ss.12) for
twenty (20) days after written notice of such failure has been given to
the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents
or in any other document or instrument delivered pursuant to or in
connection with this Credit Agreement shall prove to have been false in
any material respect upon the date when made or deemed to have been made
or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized
Leases in excess of $5,000,000, or fail to observe or perform any
material term, covenant or agreement contained in any agreement by which
it is bound, evidencing or securing borrowed money or credit received or
in respect of any Capitalized Leases in excess of $5,000,000 for such
period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations
issued thereunder to accelerate the maturity thereof;
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(g) the Borrower or any of its Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee
or other custodian, liquidator or receiver of the Borrower or any of its
Subsidiaries or of any substantial part of the assets of the Borrower or
any of its Subsidiaries or shall commence any case or other proceeding
relating to the Borrower or any of its Subsidiaries under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction, now
or hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such petition or application
shall not have been dismissed within sixty (60) days following the
filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is
entered in respect of the Borrower or any Subsidiary of the Borrower in
an involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any
final, nonappealable judgment against the Borrower or any of its
Subsidiaries that, with other outstanding final, nonappealable
judgments, undischarged, against the Borrower or any of its Subsidiaries
exceeds in the aggregate $3,000,000;
(j) any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof
or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit or in equity or other legal proceeding
to cancel, revoke or rescind any of the Loan Documents shall be
commenced by or on behalf of the Borrower or any of its Subsidiaries
party thereto or any of their respective stockholders, or any court or
any other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment,
order, decree or ruling to the effect that, any one or more of the Loan
Documents is illegal, invalid or unenforceable in accordance with the
terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability upon
the termination of a Guaranteed Pension Plan to the PBGC or a
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Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate
amount exceeding $1,000,000 (provided that nothing in this clause shall
preclude the Borrower or any ERISA Affiliate from making contributions
in contemplation of any standard termination), the Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA
by a Multiemployer Plan requiring aggregate annual payments exceeding
$1,000,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of
ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable
discretion that such event (A) is likely to result in liability of the
Borrower to the PBGC or the Plan in an aggregate amount exceeding
$1,000,000, and (B) could constitute grounds for the termination of such
Plan by the PBGC, for the appointment by the appropriate United States
District Court of a trustee to administer such Plan or for the
imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the
appointment by a United States District Court of a trustee to administer
such Plan; or (iii) the institution by the PBGC of proceedings to
terminate such Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any part of its
business and such order shall have a Material Adverse Effect;
(m) there shall occur the loss, suspension or revocation of, or
failure to renew, any registration, license or permit now held or
hereafter acquired by the Borrower or any of its Subsidiaries if such
loss, suspension, revocation or failure to renew would have a Material
Adverse Effect;
(n) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) other than
Xxx or the Employee Group shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of twenty percent (20%) or more of
the outstanding shares of common stock of the Borrower;
(o) the Borrower shall at any time legally or beneficially own
less than 100% of the capital stock of any Guarantor; or
(p) any Guarantor denies that it has any liability or obligations
under the Loan Documents to which it is a party, or shall notify the
Agent or any Bank of the Guarantor's intention to attempt to cancel or
terminate the Guaranty to which it is a party or shall fail to observe
any term, covenant, condition or agreement under any Loan Document to
which it is a party;
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then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Notes and the other Loan Documents to be, and they shall thereupon forthwith
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Borrower; PROVIDED that in the event of any Event of Default specified in
secs.12.1(g) or 12.1(h) hereof, all such amounts shall become immediately due
and payable automatically and without any requirement of notice from the Agent
or any Bank.
12.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in secs.12.1(g) or 12.1(h) hereof shall occur, any unused
portion of the credit hereunder shall forthwith terminate and each of the Banks
shall be relieved of all obligations to make Revolving Credit Loans to the
Borrower. If any other Event of Default shall have occurred and be continuing,
or if on any Drawdown Date the conditions precedent to the making of the
Revolving Credit Loans to be made on such Drawdown Date are not satisfied, the
Agent may and, upon the request of the Majority Banks, shall, by notice to the
Borrower, terminate the unused portion of the credit hereunder, and upon such
notice being given such unused portion of the credit hereunder shall terminate
immediately and each of the Banks shall be relieved of all further obligations
to make Revolving Credit Loans. If any such notice is given to the Borrower the
Agent will forthwith furnish a copy thereof to each of the Banks. No termination
of the credit hereunder shall relieve the Borrower of any of the Obligations or
any of its existing obligations to any of the Banks arising under other
agreements or instruments.
12.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Revolving Credit Loans pursuant to ss.12.1
hereof, each Bank, if owed any amount with respect to the Revolving Credit
Loans, may, with the consent of the Majority Banks but not otherwise, proceed to
protect and enforce its rights by suit in equity, action at law or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law.
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13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any of
the Banks to the Borrower and any securities or other property of the Borrower
in the possession of such Bank may be applied to or set off by such Bank against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank. Each of the Banks agrees with
each other Bank that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank, such amount shall be applied ratably to such other
Indebtedness and to the Indebtedness evidenced by all such Notes held by such
Bank, and (b) if such Bank shall receive from the Borrower, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by such Bank by proceedings
against the Borrower at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or otherwise,
and shall retain and apply to the payment of the Note or Notes held by such Bank
any amount in excess of its ratable portion of the payments received by all of
the Banks with respect to the Notes held by all of the Banks, such Bank will
make such disposition and arrangements with the other Banks with respect to such
excess, either by way of distribution, PRO TANTO assignment of claims,
subrogation or otherwise as shall result in each Bank receiving in respect of
the Notes held by it its proportionate payment as contemplated by this Credit
Agreement; PROVIDED that if all or any part of such excess payment is thereafter
recovered from such Bank, such disposition and arrangements shall be rescinded
and the amount restored to the extent of such recovery, but without interest.
14. THE AGENT.
14.1. AUTHORIZATION.
(a) The Agent is authorized to take such action on behalf of each
of the Banks and to exercise all such powers as are hereunder and under
any of the other Loan Documents and any related documents delegated to
the Agent, together with such powers as are reasonably incident thereto,
PROVIDED that no duties or responsibilities not expressly assumed herein
or therein shall be implied to have been assumed by the Agent.
(b) The relationship between the Agent and each of the Banks is
that of an independent contractor. The use of the term "Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the
Banks. Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust
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or other fiduciary relationship between the Agent and any of the Banks.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Agent is nevertheless
a "representative" of the Banks, as that term is defined in Article 1 of
the Uniform Commercial Code, for purposes of actions for the benefit of
the Banks and the Agent with respect to all collateral security and
guaranties contemplated by the Loan Documents. Such actions include the
designation of the Agent as "secured party", "mortgagee" or the like on
all financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any
of the Obligations, all for the benefit of the Banks and the Agent.
14.2. EMPLOYEES AND AGENTS. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower.
14.3. NO LIABILITY. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
14.4. NO REPRESENTATIONS.
14.4.1. GENERAL. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the
Notes, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the
Notes, or for the value of any such collateral security or for the
validity, enforceability or collectability of any such amounts owing
with respect to the Notes, or for any recitals or statements, warranties
or representations made herein or in any of the other Loan Documents or
in any certificate or instrument hereafter furnished to it by or on
behalf of the Borrower or any of its Subsidiaries, or be
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bound to ascertain or inquire as to the performance or observance of any
of the terms, conditions, covenants or agreements herein or in any
instrument at any time constituting, or intended to constitute,
collateral security for the Notes or to inspect any of the properties,
books or records of the Borrower or any of its Subsidiaries. The Agent
shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower or any holder of any of the
Notes shall have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the
Banks, with respect to the credit worthiness or financial conditions of
the Borrower or any of its Subsidiaries. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other
Bank, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Credit Agreement.
14.4.2. CLOSING DOCUMENTATION, ETC. For purposes of determining
compliance with the conditions set forth in ss.10, each Bank that has
executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Bank,
unless an officer of the Agent active upon the Borrower's account shall
have received notice from such Bank not less than five (5) days prior to
the Closing Date specifying such Bank's objection thereto and such
objection shall not have been withdrawn by notice to the Agent to such
effect on or prior to the Closing Date.
14.5. PAYMENTS.
14.5.1. PAYMENTS TO AGENT. A payment by the Borrower to the Agent
hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's PRO RATA share of payments received
by the Agent for the account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
14.5.2. DISTRIBUTION BY AGENT. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder,
under the Notes or under any of the other Loan Documents might involve
it in liability, it may refrain from making such distribution until its
right to make such distribution shall have been adjudicated by a court
of competent jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the Agent is to be
repaid, each Person to whom any
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such distribution shall have been made shall either repay to the Agent
its proportionate share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be
determined by such court.
14.5.3. DELINQUENT BANKS. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents,
any Bank that fails (a) to make available to the Agent its PRO RATA
share of any Revolving Credit Loan or (b) to comply with the provisions
of ss.13 with respect to making dispositions and arrangements with the
other Banks, where such Bank's share of any payment received, whether by
setoff or otherwise, is in excess of its PRO RATA share of such payments
due and payable to all of the Banks, in each case as, when and to the
full extent required by the provisions of this Credit Agreement, shall
be deemed delinquent (a "Delinquent Bank") and shall be deemed a
Delinquent Bank until such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any and all payments
due to it from the Borrower, whether on account of outstanding Revolving
Credit Loans, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction of, their
respective PRO RATA shares of all outstanding Revolving Credit Loans.
The Delinquent Bank hereby authorizes the Agent to distribute such
payments to the nondelinquent Banks in proportion to their respective
PRO RATA shares of all outstanding Revolving Credit Loans. A Delinquent
Bank shall be deemed to have satisfied in full a delinquency when and
if, as a result of application of the assigned payments to all
outstanding Revolving Credit Loans of the nondelinquent Banks, the
Banks' respective PRO RATA shares of all outstanding Loans have returned
to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
14.6. HOLDERS OF NOTES. The Agent may deem and treat the payee of any
Note as the absolute owner thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder.
14.7. INDEMNITY. The Banks ratably agree hereby to indemnify and hold
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent or such affiliate has not
been reimbursed by the Borrower as required by ss.15), and liabilities of every
nature and character arising out of or related to this Credit Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
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14.8. AGENT AS BANK. In its individual capacity, BKB shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Revolving Credit Loans made by it, and as the holder of any
of the Notes, as it would have were it not also the Agent.
14.9. RESIGNATION. The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Borrower.
If no successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by Standard & Poor's
Corporation. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this ss.14.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) the reasonable fees, expenses
and disbursements of the Agent's Special Counsel or any local counsel to the
Agent incurred in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, any amendments, modifications, approvals, consents or
waivers hereto or hereunder, or the cancellation of any Loan Document upon
payment in full in cash of all of the Obligations or pursuant to any terms of
such Loan Document for providing for such cancellation, (c) the fees, expenses
and disbursements of the Agent or any of its affiliates incurred by the Agent or
such affiliate in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums and surveyor, engineering and appraisal
charges, (d) all reasonable out-of-pocket expenses (including without limitation
reasonable attorneys' fees
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and costs, which attorneys may be employees of any Bank or the Agent, and
reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Bank or the Agent in connection
with (i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or any of its Subsidiaries or the administration
thereof after the occurrence of a Default or Event of Default and (ii) any
litigation, proceeding or dispute whether arising hereunder or otherwise, in any
way related to any Bank's or the Agent's relationship with the Borrower or any
of its Subsidiaries and (e) all reasonable fees, expenses and disbursements of
any Bank or the Agent incurred in connection with UCC searches. The covenants
contained in this ss.15 shall survive payment or satisfaction in full of amounts
owing with respect to the Notes.
16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent, its
affiliates and the Banks from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character arising out of this
Credit Agreement or any of the other Loan Documents or the transactions
contemplated hereby including, without limitation, (a) any actual or proposed
use by the Borrower or any of its Subsidiaries of the proceeds of any of the
Revolving Credit Loans, (b) the Borrower or any of its Subsidiaries entering
into or performing this Credit Agreement or any of the other Loan Documents or
(c) with respect to the Borrower and its Subsidiaries and their respective
properties and assets, the violation of any Environmental Law, the presence,
disposal, escape, seepage, leakage, spillage, discharge, emission, release or
threatened release of any Hazardous Substances or any action, suit, proceeding
or investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding. In litigation, or the preparation therefor, the Banks and the Agent
and its affiliates shall be entitled to select their own counsel and, in
addition to the foregoing indemnity, the Borrower agrees to pay promptly the
reasonable fees and expenses of such counsel. If, and to the extent that the
obligations of the Borrower under this ss.16 are unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable law. The
covenants contained in this ss.16 shall survive payment or satisfaction in full
of all other obligations.
17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any
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of its Subsidiaries pursuant hereto shall be deemed to have been relied upon by
the Banks and the Agent, notwithstanding any investigation heretofore or
hereafter made by any of them, and shall survive the making by the Banks of any
of the Revolving Credit Loans, as herein contemplated, and shall continue in
full force and effect so long as any amount due under this Credit Agreement or
the Notes or any of the other Loan Documents remains outstanding or any Bank has
any obligation to make any Revolving Credit Loans, and for such further time as
may be otherwise expressly specified in this Credit Agreement. All statements
contained in any certificate or other paper delivered to any Bank or the Agent
at any time by or on behalf of the Borrower or any of its Subsidiaries pursuant
hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower or such Subsidiary
hereunder.
18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
18.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries, in connection with this Credit Agreement or otherwise, by a
Section 20 Subsidiary. The Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with the Agent and
each Bank any information delivered to such Section 20 Subsidiary by the
Borrower or any of its Subsidiaries, and (b) the Agent and each Bank to share
with such Section 20 Subsidiary any information delivered to the Agent or such
Bank by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Bank to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment or satisfaction of payment of amounts owing with respect to the Notes.
18.2. CONFIDENTIALITY. Each of the Banks and the Agent agrees, on behalf
of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower or any of its Subsidiaries
pursuant to this Credit Agreement that is identified by such Person as being
confidential at the time the same is delivered to the Banks or the Agent,
PROVIDED that nothing herein shall limit the disclosure of any such information
(a) after such information shall have become public other than through a
violation of this ss.18, (b) to the extent required by statute, rule, regulation
or judicial process, (c) to counsel for any of the Banks or the Agent, (d) to
bank examiners or any other regulatory authority having jurisdiction over any
Bank or the Agent, or to
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auditors or accountants, (e) to the Agent, any Bank or any Section 20
Subsidiary, (f) in connection with any litigation to which any one or more of
the Banks, the Agent or any Section 20 Subsidiary is a party, or in connection
with the enforcement of rights or remedies hereunder or under any other Loan
Document, (g) to a Subsidiary or affiliate of such Bank as provided in ss.18.1
or (h) to any assignee or participant (or prospective assignee or participant)
so long as such assignee or participant agrees to be bound by the provisions of
ss.19.6.
18.3. PRIOR NOTIFICATION. Unless specifically prohibited by applicable
law or court order, each of the Banks and the Agent shall, prior to disclosure
thereof, notify the Borrower of any request for disclosure of any such
non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) or pursuant to legal
process.
18.4. OTHER. In no event shall any Bank or the Agent be obligated or
required to return any materials furnished to it or any Section 20 Subsidiary by
the Borrower or any of its Subsidiaries. The obligations of each Bank under this
ss.18 shall supersede and replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed and delivered by such
Bank to the Borrower prior to the date hereof and shall be binding upon any
assignee of any interest in any of the Loans from any Bank.
19. ASSIGNMENT AND PARTICIPATION.
19.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein, each
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of
the Revolving Credit Loans at the time owing to it) and the Notes held by it;
PROVIDED that (a) each of the Agent and, unless a Default or Event of Default
shall have occurred and be continuing, the Borrower shall have given its prior
written consent to such assignment, which consent, in each case, will not be
unreasonably withheld, (b) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Bank's rights and obligations under
this Credit Agreement, (c) each assignment shall be in a minimum amount of
$5,000,000 (or such smaller amount if representing the entire Commitment being
assigned); (d) so long as no Default or Event of Default has occurred, (i) BKB
and its Affiliates shall at all times maintain a Commitment Percentage of at
least 11.7647%; and (ii) The Bank of New York and its Affiliates shall at all
times maintain a Commitment Percentage of at least 11.7647%; and (e) the parties
to such assignment shall execute and deliver to the Agent, for recording in the
Register (as hereinafter defined), an Assignment and Acceptance, substantially
in the form of EXHIBIT D attached hereto (an "Assignment and Acceptance"),
together with any Notes subject to such assignment. Upon
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such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five (5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder,
and (ii) the assigning Bank shall, to the extent provided in such assignment and
upon payment to the Agent of the registration fee referred to in ss.19.3, be
released from its obligations under this Credit Agreement.
19.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest;
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in ss.ss.6.5 and 7.4 hereof and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such assignee will, independently and without reliance upon
the assigning Bank, the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Credit Agreement;
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(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Bank; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
19.3. REGISTER. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to the
Banks from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Agent and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower and the Banks at any reasonable time and from time to
time upon reasonable prior notice. Upon each such recordation, the assigning
Bank agrees to pay to the Agent a registration fee in the sum of $3,500.
19.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note, a new Note to the order of such
Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Bank
has retained some portion of its obligations hereunder, a new Note to the order
of the assigning Bank in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the surrendered
Notes, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective date of
such in Assignment and Acceptance and shall otherwise be substantially the form
of the assigned Notes. Within five (5) days of issuance of any new Notes
pursuant to this ss.18.4, the Borrower shall deliver an opinion of counsel,
addressed to the Banks and the Agent, relating to the due authorization,
execution and delivery of such new Notes and the legality, validity and
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binding effect thereof, in form and substance satisfactory to the Banks. The
surrendered Notes shall be cancelled and returned to the Borrower.
19.5. PARTICIPATIONS. Each Bank may sell participations to one or more
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (a) each such participation shall be in an amount of not less than
$1,000,000, (b) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrower and (c) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Revolving Credit Loans, extend the term
or increase the amount of the Commitment Amount of such Bank as it relates to
such participant, reduce the amount of any commitment fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest.
19.6. DISCLOSURE. The Borrower agrees that in addition to disclosures
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
PROVIDED that such assignees or participants or potential assignees or
participants shall agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
19.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to ss.12.1 or ss.12.2, and
the determination of the Majority Banks shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to such assignee
Bank's interest in any of the Revolving Credit Loans. If any Bank sells a
participating interest in any of the Revolving Credit Loans to a participant,
and such participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a Bank hereunder
or under any of the other Loan Documents for purposes of granting consents or
waivers or for purposes of agreeing to amendments or modifications to any of the
Loan Documents or for purposes of making requests to the Agent pursuant to
ss.12.1 or ss.12.2 to the extent that such participation is beneficially owned
by the Borrower or any Affiliate of the Borrower, and the determination of the
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Majority Banks shall for all purposes of this Credit Agreement and the other
Loan Documents be made without regard to the interest of such transferor Bank in
the Revolving Credit Loans to the extent of such participation.
19.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall
retain its rights to be indemnified pursuant to ss.16 with respect to any claims
or actions arising prior to the date of such assignment. If any assignee Bank is
not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrower and the Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. If any Reference Bank
transfers all of its interest, rights and obligations under this Credit
Agreement, the Agent shall, in consultation with the Borrower and with the
consent of the Borrower and the Majority Banks, appoint another Bank to act as a
Reference Bank hereunder. Anything contained in this ss.19 to the contrary
notwithstanding, any Bank may at any time pledge all or any portion of its
interest and rights under this Credit Agreement (including all or any portion of
its Notes) to any of the twelve Federal Reserve Banks organized under ss.4 of
the Federal Reserve Act, 12 U.S.C. ss.341. No such pledge or the enforcement
thereof shall release the pledgor Bank from its obligations hereunder or under
any of the other Loan Documents.
19.9. ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
20. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by telegraph, telecopy, telefax or
telex and confirmed by delivery via courier or postal service, addressed as
follows:
(a) if to the Borrower, Freedom Securities Corporation, One World
Financial Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx XxXxx, or at such other address for notice as the
Borrower shall last have furnished in writing to the Person giving the
notice, with copies to (i) Xxxxxx X. Xxx Company, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx and (ii)
Xxxxxxxx, Xxxxxxx & Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Xxxxx Xxxxxx, Esq.;
(b) if to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, XXX, Attention: Xxxxx Xxxxx, Managing Director or such other
address for notice as the Agent shall last have
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furnished in writing to the Person giving the notice, with a copy to
Xxxxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Lea Xxxx Xxxxxxxxxx, Esq.; and
(c) if to any Bank, at such Bank's address set forth on SCHEDULE
1 attached hereto, or such other address for notice as such Bank shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
21. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SS.19. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
22. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
23. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
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24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in ss.25.
25. WAIVER OF JURY TRIAL.
The Borrower hereby waives its right to a jury trial with respect to any
action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of which rights and
obligations. Except as prohibited by law, the Borrower hereby waives any right
it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Borrower (a)
certifies that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that the Agent and the Banks have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit Agreement, any
consent or approval required or permitted by this Credit Agreement to be given
by the Banks may be given, and any term of this Credit Agreement, the other Loan
Documents or any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower or any of its
Subsidiaries of any terms of this Credit Agreement, the other Loan Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Borrower and
the written consent of the Majority Banks. Notwithstanding the foregoing, there
shall be no decrease in the rate of interest on the Notes (other than interest
accruing pursuant to ss.4.11 following the effective date of any waiver by the
Majority Banks of the Default or Event of Default relating thereto), any change
to ss.2.3.1 (including, without limitation, any amendmenT to the definitions of
Net Cash Proceeds, Net Cash Sale Proceeds, Asset Sales or Equity Issuances), any
release of any Guarantor (except if the release of such Guarantor is as a result
of the sale of capital stock of such Guarantor and such sale is permitted
pursuant to ss.8.5.2 hereof), or any change in the maturity of the Notes, the
Commitment Amount or the Commitment Percentages of the Banks, without the
written
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consent of the Borrower and the written consent of each Bank affected thereby;
this ss.26 and the definition of Majority BankS may not be amended without the
written consent of all of the Banks; and the amount of the Agent's Fee and ss.14
may not be amended without the written consent of the Agent. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the
Agent or any Bank in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall
entitle the Borrower to other or further notice or demand in similar or other
circumstances.
27. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
FREEDOM SECURITIES CORPORATION
/s/ Xxxx X. Xxxxxxxxx
By: _________________________________
Name: Xxxx X. Xxxxxxxxx
Title: President
BANKBOSTON, N.A., individually and
as Administrative and Documentation
Agent
/s/ Xxxxx X. Xxxxx
By: _________________________________
Name:
Title:
THE BANK OF NEW YORK,
individually and as Syndication Agent
/s/ Xxxx X. Xxxxxxx
By: _________________________________
Name:
Title:
CREDIT LYONNAIS
/s/ Xxxxxx x'Xxxxxx
By: _________________________________
Name:
Title:
